Applying the ‘Lefever Standard’ to presidential nominees

In the coming days, members of the U.S. Senate will perform their constitutional duty to provide advice and consent to more than 1,200 presidential nominees for senior positions throughout the federal government. Following a highly contentious presidential election and in a deeply divided country, the confirmation process will be subject to intense public scrutiny.

{mosads}While in general, the president should have wide latitude to choose his team, in the unusual situation where a nominee intends to undermine the core function of his or her office, it is the duty of senators to challenge those nominees. The Senate did so 35 years ago, when rejecting the nomination of Ernest Lefever. The Lefever confirmation process offers some instructive lessons for senators today.

The advice and consent clause was written into the Constitution by the framers as part of a compromise aimed at maintaining a balance of power. By allowing the president wide discretion in making appointments, but subjecting those choices to Senate review, the framers sought to ensure both strong executive power balanced by a strong Congress.

The Lefever nomination tested this model and demonstrated its effectiveness. In February 1981, President Reagan nominated Lefever as assistant secretary of state for Human Rights and Humanitarian Affairs. Lefever’s nomination generated a lively debate over whether human rights issues should be part of American foreign policy. His views clearly were outside of the bipartisan mainstream. In 1979, he had proposed that all U.S. laws linking trade and aid to human rights should be repealed. He implied that the office to which he was now being appointed should be subsumed into other parts of the State Department. He also wrote, “International law forbids any state from interfering in the internal political, judicial and economic affairs of another.”

When asked about these assertions by members of the Senate Committee on Foreign Relations, Lefever said that he had “goofed.” However, he held firm in the position that the United States had no right “to promote human rights in other sovereign states,” a direct refutation of U.S. human rights policy.

In a 1977 New York Times opinion piece, Lefever also wrote: “We have no moral mandate to remake the world in our own image. It is arrogant to attempt to reform the domestic behavior of our Allies or our adversaries.”

He urged that the U.S. must be “a steadfast ally rather than an erratic and capricious partner given to moral posturing.” When asked whether this meant the U.S. simply should not challenge the practice of torture by Pinochet’s military junta in Chile, Lefever demurred, calling it, “a residual practice of the Iberian tradition.”

In 1981, as today, the Senate had a Republican majority and a newly elected Republican president. Sen. Charles Percy, who chaired the Senate Foreign Relations Committee, led a thorough assessment of Lefever’s background and views. When he met with Percy before the public hearings, Lefever suggested that those who opposed his nomination were inspired by communists. When Percy raised this at the hearing, Lefever suggested that he never made such a statement and that Percy must have misheard him.

Perhaps Lefever’s most extreme view was that the U.S. should never act “to reform domestic institutions or practices, however obnoxious.” This prompted Sen. Rudy Boschwitz, whose family fled Nazi Germany when he was a child, to ask Lefever if he would have intervened to stop Nazi atrocities in Germany. Lefever paused and then said yes, but only after Germany’s external aggression threatened U.S. national security.

In June 1981, three other Republicans joined with Percy and Boschwitz to vote against Lefever’s nomination, constituting a majority of Republican senators on the committee. Several days after the vote, Reagan withdrew the Lefever nomination. This led the Reagan administration to develop a more affirmative human rights policy that emphasized the promotion of democracy as a central tenet. In so doing, the Reagan administration reaffirmed the bipartisan nature of U.S. human rights policy. 

Senators who are part of confirmation hearings in the upcoming weeks now have the same obligation to ensure appointees fully respect the offices for which they have been nominated as they seek to guide the president wisely through his term. 

Michael Posner is a former U.S. assistant secretary of state for Democracy, Human Rights and Labor. He is the Jerome Kohlberg Professor of Ethics and Finance, and co-director of the Center for Business and Human Rights, at the NYU Stern School of Business.

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