The President vs. The Senate

The battle over John Tower’s nomination as Secretary of Defense earlier this year goes down as one of those struggles that whirled trivial and profound issues in the blender of journalism and produced a somewhat mystifying concoction. Was the senator denied confirmation because he was too fond of wine and women? Or was he tainted by coziness with the defense contractors that he would have to oversee? Was he given a fair hearing or drowned in innuendo, leak by leak? Or booby-trapped by an improved but suspiciously new standard of public morality?

No matter. The important thing is that he was rejected. The Senate, as constitutionally authorized, refused its consent to President Bush’s choice, thereby adding another chapter to a long history of conflict over the boundaries of Executive power. Republicans argued that by custom the President is allowed to pick his team unhampered. But this is not quite so. As early as August 1789 Washington’s nomination of Benjamin Fishbourn as “naval officer” at Savannah was turned down by the Senate. The door was left open for Washington to appear in person to defend his choice, but he thought it would be undignified and perhaps inhibiting to do so, “for as the President has a right to nominate without assigning his reasons, so has the Senate a right to dissent without giving theirs.”

If Presidents sometimes succumb to thinking themselves imperial, senators likewise confuse themselves now and then with peers of the realm. After all, they serve a longer term than the President, and they originally represented sovereign states, giving them a kind of ambassadorial stature. (Until 1913, in fact, they were chosen by state legislators.) Conflict is inevitable. The uncontested nadir of presidential-senatorial relationships was the Senate’s failure, by only a single vote, to oust Andrew Johnson in 1868. Less well known is an earlier occasion when the Senate stretched its constitutional mandate and did not merely deny the President an appointment or a treaty but officially censured him—the only such occasion in our history. Not surprisingly, the Chief Executive in question was the stormy Andrew Jackson, and he did not take the chastisement meekly.

The episode is most recently told in short form in a fine book that has just reached me, The Senate, 1789–1989: Addresses on the History of the United States Senate, by Sen. Robert C. Byrd, available from the U.S. Government Printing Office. The book is a story in itself. It consists of thirty-nine talks—out of more than one hundred—delivered by the West Virginia Democrat and former majority leader in the Senate chamber when business and attendance were light, usually on Fridays. Byrd began them one such Friday in 1980 to edify his granddaughter and some of her fifth-grade friends, who were visiting in the gallery. Soon the talks became a regular event. Helping make them so was the Senate Historical Office. Among other duties, the SHO, ably headed by Dr. Richard Baker, organized the research and preparation of the senator’s material.

As Byrd relates, the stage for the censure was set by Jackson’s war on the Second Bank of the United States. Chartered by Congress in 1816, the bank was a private enterprise in which the federal government held stock and, more important, in which it deposited all the funds belonging to the United States government, there being no independent Treasury at the time. These huge holdings made the Bank of the United States the country’s major lender, and it therefore had de facto power to tighten or loosen credit throughout the country by its policies. The power was freely used by its arrogant, brilliant president, the Philadelphia patrician Nicholas Biddle, who looked dimly on state banks and thought of Andrew Jackson as a dangerous demagogue and an uncouth barbarian.

Jackson reciprocated the hostility. He swore to take the bank’s life and got his chance in 1832, when Congress prematurely passed a bill to recharter the institution when its existing contract expired in 1836. Jackson had the votes to make his veto of the bill stick—and he won reelection. But the Senate of the Twenty-third Congress, chosen in that same year, would contain an anti-Jackson majority.

Under the rules then in force, however, the new Congress would not convene until December of 1833, and Jackson determined to remove the government deposits immediately and so ordered his Secretary of the Treasury, Louis McLane of Delaware. McLane demurred. The old charter was still alive, and he was not at all sure that Jackson had the authority to flout a congressional enactment. Jackson kicked him upstairs to the State Department and replaced him with William J. Duane, a Philadelphia Irishman who hated the bank as much as the President himself did. But Duane, too, feared setting off a political fire storm and also worried (correctly) that the move might create financial havoc.

So Jackson fired him too. Finally he named Roger B. Taney, of Maryland, to the post. Taney took office in September and immediately began transferring the deposits to selected “pet banks” in the states. When Congress met, it faced an accomplished and irreversible action. But the anti-Jackson Senate could still protest.

The still-small body was dominated by three strong and egotistical men, each of whom was a mortal political enemy of the President: John C. Calhoun, Daniel Webster, and Henry Clay. Clay opened fire on December 10, 1833, by pushing through a resolution asking Jackson to explain the “paper” he had read to the cabinet ordering the violation of the charter. Jackson promptly replied: “The Executive is a co-ordinate and independent branch of the Government equally with the Senate; and I have yet to learn under what constitutional authority that branch of the Legislature has a right to require of me an account of any communication … made to the heads of departments.…” Over in the House John Quincy Adams was shocked at the “tone of insolence and insult” with which Jackson claimed Executive privilege, but he admitted to his diary that Clay was “paid in his own coin.”

Clay’s response was to introduce and defend a resolution declaring that “the President in the late Executive proceedings in relation to the public revenue, has assumed upon himself authority and power not conferred by the Constitution and laws, but in derogation of both.” Calhoun and Webster, among others, joined the attack, Webster’s zeal enhanced by a regular “retainer” that he got from the bank. (Congressional ethics were somewhat limber even in the golden age.)

Clay’s resolution passed on the twenty-eighth of March—28 to 18. Jackson responded with a message saying he would continue “to persuade my countrymen … that it is not in a splendid Government, supported by powerful monopolies and aristocratical establishments, that it will find happiness … but in a plain system, void of pomp … dispensing its blessings like the dews of heaven.” The Senate voted to reject the communication. For good measure it also refused to confirm Taney to the cabinet.

But Jackson had the last word. In 1834’s voting the Democrats got control of the Senate in the new Twenty-fourth Congress. Not until its second session, in December of 1836, could Sen. Thomas Hart Benton of Missouri make his retaliatory move, and by the time he did, Jackson was a lame-duck President, due to go out of office the following March. But Benton pressed the attack. He moved to “expunge” the offending resolution—not nullify or reverse or repeal it, but physically take it out of the record. Even a few Democratic senators hesitated to meddle with the official journal that the Constitution commanded should be kept, but Benton would have nothing less.

The final debate, held on a January night, was long, arduous, and angry. The anti-Jackson minority denounced the iniquity of tampering with the historical record, and Henry Clay, anticipating defeat, ostentatiously dressed in black to mourn the impending fall of tradition. Around midnight, when both sides had shouted themselves hoarse before packed galleries, the resolution was passed. The journal of the preceding Senate was solemnly brought to the secretary’s desk, opened, and laid flat. Using a straightedge, the clerk then drew heavy black lines around the original censure and wrote across it at a right angle, “Expunged by order of the Senate this sixteenth day of January in the Year of our Lord 1837.”

An anti-Jackson participant later wrote that “the scratch of the pen alone was heard in the awful silence which prevailed when the gall of party bitterness drew its lines in the blackness of darkness around the freedom and independence of the Senate.” But if there was silence, it was soon broken by hisses and outcries in the gallery. In a final flurry of animosity a heckler was brought down to the floor by the sergeant at arms but was released without punishment. Then the Senate adjourned.

Henry Clay lost his usual urbanity and refused a pinch of snuff to a Democratic senator. He and Benton continued to jaw at each other as they descended the Capitol steps. But Byrd records that senatorial collegiality at last prevailed. Both men calmed down, Benton walked Clay home, and there they stayed until 3:00 A.M., undoubtedly rehashing matters over a nightcap.

The next day Benton sent his son over to the White House with a present for Jackson: the pen used in the expunging. Clay had become glum again, later confiding to a friend: “The Senate is no longer a place for any decent man. I am truly sick of Congress.”

Nevertheless, he served almost continuously in the Senate until his death in 1852. The censure struggle was not the last battle he would see between strong senators and ambitious Presidents. Nor is this latest 1989 installment the final one in the ongoing conflict. It is built into the system, and if you buy and read Byrd’s volume or any other history of Congress, you can, as they say, look it up.