Friday - July 22, 2005
The Founding Fathers & The Supreme Court, Part II
This is the second of a two-part series. Part I was posted this morning.
“Advice and Consent”. We hear a lot about that whenever an opening comes up for the Supreme Court, however it also applies to ambassadors and Cabinet members too. The framers of the Constitution gave a lot of thought as to how to appoint non-elected officers to positions of power within the Federal government. As noted in the Federalist Papers, they decided against giving Congress the power to do it by themselves for the simple reason that committees of men rarely agree and partisan bickering would probably result in compromises that would not put the best qualified people in those positions.
For that reason, they decided to give the power to nominate people to these positions to the Executive branch. The key word here is “nominate”. This allows the President to choose who, in his best judgement, is the best qualified to serve. At the same time, the Founding Fathers decided to throw in a check on this power by making it a process where the President was advised by the Senate as to possible choices and the President’s nominee had to have the consent of the Senate. This was done, as explained by Alexander Hamilton, to keep the President from appointing political hacks, friends, relatives, et. who were unqualified. Here is the text of Article II, Section II of the Consitution relating to this process ....
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
There you go. Notice there is one word missing from that text that you have heard a lot of lately .... filibuster. To put it bluntly, a “filibuster” is an invention by partisan political hacks whereby the Senate never actually gives its consent but simply avoids voting on the issue of consent by talking each other to death. The Founding Fathers never foresaw this devious tactic whereby one group of Senators could postpone a vote on consent indefinitely by simply talking and talking and talking. The Founding Fathers evidently had faith in the American people such that they would never elect any idiots stupid enough to be this venal and partisan in their appointed duties. That is because the Founding Fathers were all good men of solid character and ethics. They could never imagine any group of maggots ever gaining enough power within the Senate to bastardize the process in this manner. I’ll let Alexander Hamilton explain their views on the appointment of Supreme Court judges to give you a little insight into their thinking ....
On why the appointment should be done by one man, the President ....
The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. He will, on this account, feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them. He will have FEWER personal attachments to gratify, than a body of men who may each be supposed to have an equal number; and will be so much the less liable to be misled by the sentiments of friendship and of affection. A single well-directed man, by a single understanding, cannot be distracted and warped by that diversity of views, feelings, and interests, which frequently distract and warp the resolutions of a collective body. There is nothing so apt to agitate the passions of mankind as personal considerations whether they relate to ourselves or to others, who are to be the objects of our choice or preference. Hence, in every exercise of the power of appointing to offices, by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly. The choice which may at any time happen to be made under such circumstances, will of course be the result either of a victory gained by one party over the other, or of a compromise between the parties. In either case, the intrinsic merit of the candidate will be too often out of sight. In the first, the qualifications best adapted to uniting the suffrages of the party, will be more considered than those which fit the person for the station. In the last, the coalition will commonly turn upon some interested equivalent: ``Give us the man we wish for this office, and you shall have the one you wish for that.’’ This will be the usual condition of the bargain. And it will rarely happen that the advancement of the public service will be the primary object either of party victories or of party negotiations.
On the reasoning behind requiring the consent of the Senate ....
To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.
It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entire branch of the legislature. The possibility of rejection would be a strong motive to care in proposing. The danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other. He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.
So you see, the whole idea was to give the President power to appoint but the Senate has the power to vote up or down to confirm the appointment. This keeps the President honest and allows for a more dynamic process that would reasonably put the best people in the offices where they were needed, such as the Supreme Court. Refusing to vote on the President’s choice by holding the appointment up in committee or blocking a vote in the Senate by reading from Dr. Seuss books is outside the pale. The act of filibuster is a travesty and an affront to the original intent of the Constitution and its authors.
Personally, I like most the way Hamilton concludes his treatise on the appointment process by discussing the better nature of man ....
To this reasoning it has been objected that the President, by the influence of the power of nomination, may secure the complaisance of the Senate to his views. This supposition of universal venality in human nature is little less an error in political reasoning, than the supposition of universal rectitude. The institution of delegated power implies, that there is a portion of virtue and honor among mankind, which may be a reasonable foundation of confidence; and experience justifies the theory. It has been found to exist in the most corrupt periods of the most corrupt governments.
Though it might therefore be allowable to suppose that the Executive might occasionally influence some individuals in the Senate, yet the supposition, that he could in general purchase the integrity of the whole body, would be forced and improbable. A man disposed to view human nature as it is, without either flattering its virtues or exaggerating its vices, will see sufficient ground of confidence in the probity of the Senate, to rest satisfied, not only that it will be impracticable to the Executive to corrupt or seduce a majority of its members, but that the necessity of its co-operation, in the business of appointments, will be a considerable and salutary restraint upon the conduct of that magistrate.
Source: The Federalist Papers, No. 76 - The Appointing Power of the Executive, From the New York Packet. Tuesday, April 1, 1788.
Posted by The Skipper
on 07/22/2005 at 11:24 AM
Filed Under: • Judges-Courts-Lawyers • Politics •
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