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The Federal Appointments Process: A Constitutional and Historical Analysis
Although the federal appointment of U.S. judges and executive branch officers has consistently engendered controversy, previous studies of the process have been limited to particular dramatic conflicts and have tended to view appointments in a vacuum without regard to other incidents in the process, other legislative matters, or broader social, political, and historical developments. The Federal Appointments Process fills this gap by providing the first comprehensive analysis of over two hundred years of federal appointments in the United States, revealing crucial patterns of growth and change in one of the most central of our democratic processes.
Michael J. Gerhardt includes each U.S. president’s performance record regarding appointments, accounts of virtually all the major confirmation contests, as well as discussion of significant legal and constitutional questions raised throughout U.S. history. He also analyzes recess appointments, the Vacancies Act, the function of nominees in the appointment process, and the different treatment received by judicial and nonjudicial nominations. While discussing the important roles played by media and technology in federal appointments, Gerhardt not only puts particular controversies in perspective but also identifies important trends in the process, such as how leaders of different institutions attempt to protect—if not expand—their respective prerogatives by exercising their authority over federal appointments. Employing a newly emerging method of inquiry known as “historical institutionalism”—in which the ultimate goal is to examine the development of an institution in its entirety and not particular personalities or periods, this book concludes with suggestions for reforms in light of recent controversies springing from the longest delays in history that many judicial nominees face in the Senate.
Gerhardt’s intensive treatment of the subject will be of interest to students and scholars of political science, government, history, and legal studies.
Michael J. Gerhardt includes each U.S. president’s performance record regarding appointments, accounts of virtually all the major confirmation contests, as well as discussion of significant legal and constitutional questions raised throughout U.S. history. He also analyzes recess appointments, the Vacancies Act, the function of nominees in the appointment process, and the different treatment received by judicial and nonjudicial nominations. While discussing the important roles played by media and technology in federal appointments, Gerhardt not only puts particular controversies in perspective but also identifies important trends in the process, such as how leaders of different institutions attempt to protect—if not expand—their respective prerogatives by exercising their authority over federal appointments. Employing a newly emerging method of inquiry known as “historical institutionalism”—in which the ultimate goal is to examine the development of an institution in its entirety and not particular personalities or periods, this book concludes with suggestions for reforms in light of recent controversies springing from the longest delays in history that many judicial nominees face in the Senate.
Gerhardt’s intensive treatment of the subject will be of interest to students and scholars of political science, government, history, and legal studies.
416 pages, Paperback
First published December 11, 1995
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July 28, 2025
BOOK REVIEW - The Federal Impeachment Process, A Constitutional and Historical Analysis by Michael J. Gerhardt (01.10.20)
Impeachment law is not something they teach in law school. I learned some of the technical and historical details when I was assigned to write part of Orrin Hatch’s speech opposing the expulsion for the Senate of Sen. Harrison Williams for his involvement in the Abscam scandal in mid-1980s. For good reason impeachment has a high bar.
The book is the is a definitive, accessible, and rigorously researched work that explores the origins, constitutional logic, and historical applications of impeachment in American government. I read this book at the outset of Donald Trump’s first impeachment trial, hoping to better understand the constitutional framework and legal reasoning behind impeachment—and what standards should guide the Senate in its role as jurors. What Gerhardt provides is not only historical and legal depth, but a clear warning: impeachment, though a political process, must be guided by constitutional principles, not partisan calculation.
Supporting Conviction: Gerhardt’s Framework and Trump’s Conduct
Gerhardt outlines several criteria for impeachment and conviction, rooted in constitutional text, Framers’ intent, and precedent. Applying the framework of the law and to Trump impeachment trials yield the following, by my estimation:
“Abuse of Power” as an Impeachable Offense - Gerhardt explains that impeachment was designed to check presidents who use their office to subvert the public trust. Abuse of power—particularly for personal or political gain—is repeatedly identified as a core impeachable offense. Trump’s solicitation of Ukraine to investigate a political rival, while withholding congressionally approved military aid, fits squarely within this framework. Gerhardt writes: “Impeachment is meant to deal with offenses that subvert the Constitution’s design or the integrity of government, especially those that use official power for personal benefit.”
Intent and Corruption Matter More Than Criminality - Gerhardt warns against reducing impeachment to a narrow legalistic exercise requiring statutory crimes. The Founders, he explains, were concerned with “political crimes,” including betrayal of constitutional duties and subversion of democratic processes. Trump’s defenders argued no law was broken; Gerhardt’s work makes clear that this is not the standard.
The Senate’s Duty is to Judge, Not to Shield - Gerhardt emphasizes that the Senate’s role is not to protect a president or party, but to uphold constitutional accountability. Senators take an oath to do “impartial justice”—not political calculation. The Senate’s decision to refuse witnesses or additional evidence ran counter to the due diligence Gerhardt calls for.
Supporting Acquittal: Ambiguity and Political Context - Gerhardt also acknowledges the realities that complicate impeachment:
High Bar for Conviction - The two-thirds requirement was meant to ensure that only clear and serious abuses result in removal. Gerhardt concedes that a lack of bipartisan consensus—however regrettable—can doom even meritorious cases.
Presidential Defenses and Partisan Interpretation - He notes that what qualifies as “high crimes and misdemeanors” is unavoidably interpreted through a political lens. In a polarized environment, many Senators interpreted Trump’s conduct as reckless but not rising to the constitutional threshold for removal.
Precedent for Presidential Latitude - Gerhardt recounts past impeachment efforts (Andrew Johnson, Nixon, Clinton), and how each was shaped as much by public opinion and political context as legal merits. Trump’s defenders leaned on this precedent to argue for restraint.
What stands out in retrospect is how many of Gerhardt’s core principles were neglected:
The Senate abdicated its fact-finding role, refusing to call key witnesses like John Bolton or review critical evidence, a choice made for political expedience, not constitutional fidelity. Senators publicly announced verdicts before the trial began, violating the impartiality their oath required. The defense leaned on procedural quibbles, such as whether it’s “impeachable” to pressure a foreign government without an explicit quid pro quo—arguments that Gerhardt identifies as evasions of core constitutional concerns.
Gerhardt’s argument that impeachment is a test of institutional integrity becomes prophetic. He warns that: “If impeachment becomes purely a function of partisan alignment rather than principled judgment, its deterrent function collapses.”
This is precisely what happened. The Senate, in choosing party over principle, signaled that a president could solicit foreign interference with impunity if their party controls the chamber.
This book is not a partisan polemic. It is a scholarly call to treat impeachment as the constitutional mechanism it was designed to be: a safeguard against executive overreach. The Senate had a roadmap. They simply chose not to follow it.
Impeachment law is not something they teach in law school. I learned some of the technical and historical details when I was assigned to write part of Orrin Hatch’s speech opposing the expulsion for the Senate of Sen. Harrison Williams for his involvement in the Abscam scandal in mid-1980s. For good reason impeachment has a high bar.
The book is the is a definitive, accessible, and rigorously researched work that explores the origins, constitutional logic, and historical applications of impeachment in American government. I read this book at the outset of Donald Trump’s first impeachment trial, hoping to better understand the constitutional framework and legal reasoning behind impeachment—and what standards should guide the Senate in its role as jurors. What Gerhardt provides is not only historical and legal depth, but a clear warning: impeachment, though a political process, must be guided by constitutional principles, not partisan calculation.
Supporting Conviction: Gerhardt’s Framework and Trump’s Conduct
Gerhardt outlines several criteria for impeachment and conviction, rooted in constitutional text, Framers’ intent, and precedent. Applying the framework of the law and to Trump impeachment trials yield the following, by my estimation:
“Abuse of Power” as an Impeachable Offense - Gerhardt explains that impeachment was designed to check presidents who use their office to subvert the public trust. Abuse of power—particularly for personal or political gain—is repeatedly identified as a core impeachable offense. Trump’s solicitation of Ukraine to investigate a political rival, while withholding congressionally approved military aid, fits squarely within this framework. Gerhardt writes: “Impeachment is meant to deal with offenses that subvert the Constitution’s design or the integrity of government, especially those that use official power for personal benefit.”
Intent and Corruption Matter More Than Criminality - Gerhardt warns against reducing impeachment to a narrow legalistic exercise requiring statutory crimes. The Founders, he explains, were concerned with “political crimes,” including betrayal of constitutional duties and subversion of democratic processes. Trump’s defenders argued no law was broken; Gerhardt’s work makes clear that this is not the standard.
The Senate’s Duty is to Judge, Not to Shield - Gerhardt emphasizes that the Senate’s role is not to protect a president or party, but to uphold constitutional accountability. Senators take an oath to do “impartial justice”—not political calculation. The Senate’s decision to refuse witnesses or additional evidence ran counter to the due diligence Gerhardt calls for.
Supporting Acquittal: Ambiguity and Political Context - Gerhardt also acknowledges the realities that complicate impeachment:
High Bar for Conviction - The two-thirds requirement was meant to ensure that only clear and serious abuses result in removal. Gerhardt concedes that a lack of bipartisan consensus—however regrettable—can doom even meritorious cases.
Presidential Defenses and Partisan Interpretation - He notes that what qualifies as “high crimes and misdemeanors” is unavoidably interpreted through a political lens. In a polarized environment, many Senators interpreted Trump’s conduct as reckless but not rising to the constitutional threshold for removal.
Precedent for Presidential Latitude - Gerhardt recounts past impeachment efforts (Andrew Johnson, Nixon, Clinton), and how each was shaped as much by public opinion and political context as legal merits. Trump’s defenders leaned on this precedent to argue for restraint.
What stands out in retrospect is how many of Gerhardt’s core principles were neglected:
The Senate abdicated its fact-finding role, refusing to call key witnesses like John Bolton or review critical evidence, a choice made for political expedience, not constitutional fidelity. Senators publicly announced verdicts before the trial began, violating the impartiality their oath required. The defense leaned on procedural quibbles, such as whether it’s “impeachable” to pressure a foreign government without an explicit quid pro quo—arguments that Gerhardt identifies as evasions of core constitutional concerns.
Gerhardt’s argument that impeachment is a test of institutional integrity becomes prophetic. He warns that: “If impeachment becomes purely a function of partisan alignment rather than principled judgment, its deterrent function collapses.”
This is precisely what happened. The Senate, in choosing party over principle, signaled that a president could solicit foreign interference with impunity if their party controls the chamber.
This book is not a partisan polemic. It is a scholarly call to treat impeachment as the constitutional mechanism it was designed to be: a safeguard against executive overreach. The Senate had a roadmap. They simply chose not to follow it.
Displaying 1 of 1 review