[The President] 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.
– U.S. Constitution, Article II, Section 2 (the “Appointments Clause”)
“Alexander joins forces with James Madison and John Jay to write a series of essays defending the new United States Constitution, entitled The Federalist Papers. The plan was to write a total of twenty-five essays, the work divided evenly among the three men. In the end, they wrote eighty-five essays, in the span of six months. John Jay got sick after writing five. James Madison wrote twenty-nine. Hamilton wrote the other fifty-one!”
– Aaron Burr in Hamilton
And among those fifty-one essays, Alexander Hamilton, under the pseudonym “Publius”, wrote Federalist 76 and Federalist 77, dealing with the appointment of (among other things) Justices to the Supreme Court.
So since Hamilton, the musical, is still taking the country by storm, and the appointment of SCOTUS justices is a hot-and-heavy topic, I thought I would check out what our favorite founding father said on the issue, to see if he could enlighten us.
So I read Federalist 76 and 77. The real meat of Hamilton’s defense of the Appointment Clause of the Constitution lies in Federalist 76.
“It will be agreed on all hands, that the power of appointment, in ordinary cases, ought to be modified in one of three ways. It ought either to be vested in a single man, or in a SELECT assembly of a moderate number; or in a single man, with the concurrence of such an assembly. The exercise of it by the people at large will be readily admitted to be impracticable; as waiving every other consideration, it would leave them little time to do anything else. When, therefore, mention is made in the subsequent reasonings of an assembly or body of men, what is said must be understood to relate to a select body or assembly, of the description already given. The people collectively, from their number and from their dispersed situation, cannot be regulated in their movements by that systematic spirit of cabal and intrigue, which will be urged as the chief objections to reposing the power in question in a body of men.”
Hamilton is saying that we can’t have the people make the nominations, or else they will be voting all the time. So we must give that power to (1) the President exclusively or (2) Congress or some other body exclusively or (3) the President, with the consent of Congress of some other body.
Since the ultimate goal of the Constitution is “the good administration of government”, Hamilton reasoned that a solitary person, the President, would be less likely by virtue of his position to pick somebody unqualified for office:
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.
Hamilton went on to explain why group decisions are bad…. specifically, party politics:
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.
In other words, if one party dominates in a group decision on who to nominate, they will ignore the intrinsic character of the candidate. On the other hand, if there is bargaining involved, then the candidate for office will be the unremarkable result of a compromise.
Then Hamilton takes on the critics with perhaps a little snark:
The truth of the principles here advanced seems to have been felt by the most intelligent of those who have found fault with the provision made, in this respect, by the convention.
That can be read as “Even people who disagree with the Appointments Clause agree with me that group decisions are bad.” Or perhaps it is Hamilton-ese for “If you disagree with what I have said so far, you must be stupid.”
Either way, Hamilton addresses those who think that the President and the President ALONE should get to make appointments:
In the act of nomination, his judgment alone would be exercised; and as it would be his sole duty to point out the man who, with the approbation of the Senate, should fill an office, his responsibility would be as complete as if he were to make the final appointment. There can, in this view, be no difference between nominating and appointing. The same motives which would influence a proper discharge of his duty in one case, would exist in the other. And as no man could be appointed but on his previous nomination, every man who might be appointed would be, in fact, his choice.
No, no, says Hamilton. The President is effectively making the appointments by nominating the candidate. After all, the ONLY people who can fill the position are those nominated by the President. He is effectively the one who appoints, subject to the endorsement by the Senate.
This should not be lost on the present Congress and the Congresscritters running for higher office. When it comes to filling vacancies on the Supreme Court and elsewhere, the Constitution envisions MORE power to the presidency. It is HIS ball game.
He goes on with some sage advice for today’s Republicans:
But might not his nomination be overruled? I grant it might, yet this could only be to make place for another nomination by himself. The person ultimately appointed must be the object of his preference, though perhaps not in the first degree. It is also not very probable that his nomination would often be overruled. The Senate could not be tempted, by the preference they might feel to another, to reject the one proposed; because they could not assure themselves, that the person they might wish would be brought forward by a second or by any subsequent nomination. They could not even be certain, that a future nomination would present a candidate in any degree more acceptable to them; and as their dissent might cast a kind of stigma upon the individual rejected, and might have the appearance of a reflection upon the judgment of the chief magistrate, it is not likely that their sanction would often be refused, where there were not special and strong reasons for the refusal.
Now, I read several things in that paragraph. For one thing — although it is not explicitly written — Hamilton clearly envisions Congress voting on the President’s nomination. He assumes (as any American would) that those elected to Congress would recognize their obligation to vote on the President’s nominee. There is no mention of delay or parliamentary tricks. Remember, the goal here is the “good administration of government”, and for that to happen, you need to do what the Constitution contemplates. The President nominates, the Senate votes to endorse (or not endorse). Take note, congressional Republicans.
Yes, it is possible albeit “not very probable” that the nomination might be “overruled” by the Senate, Hamilton says, and that has proven to be statistically true. Rejection of nominees is rare. But the result of rejecting a nominee brings peril, Hamilton says above, because the NEXT nominee from the President might be worse.
This is why I think Bernie Sanders and Hillary Clinton should float the idea that they would nominate someone like Larry Tribe or Richard Posner. Two very qualified men — perhaps the foremost Constitutional experts ever — and decidedly left.
Moving on, Hamilton discusses what the Senate, in the approval process, should actually DO:
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.
“A silent operation”. Oh, if that were true.
But Hamilton says the Senate confirmation process will act as a deterrence to the President from exercising poor judgment in nominating candidates. Senate approval will act as a barrier to bringing forth candidates who merely seek lucrative positions, who come from the same state as the President, or are in some way personally allied with him. Notably, Hamilton does NOT envision rejection of candidates based on their philosophy of government, or, in the case of judges, their judicial philosophy (e.g., originalism versus “living constitution”).
In other words, the Senate confirmation process is a check on corruption and cronyism, that’s all. That’s the Senate’s role, constitutionally, in matter of appointments by the President. Its power is not co-extensive with the President. The selection of justices is not a joint decision between two branches of government. The Senate’s role is inferior — “advice and consent”. Again, take note.
Finally, Hamilton addresses another objection to the Appointments Clause . . .
[I]t has been objected that the President, by the influence of the power of nomination, may secure the complaisance of the Senate to his views.
. . . to wit, that presidential influence will secure complacency in the Senate and they will just rubberstamp whoever the President nominates.
This supposition of universal venalty 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.
That’s Hamilton’s way of saying “Yyyyyeah right” in parentheses. He goes on to say that perhaps the British House of Commons is influenced by the monarchy in England, but this new country, America, is not a monarchy. And the Constitution provides for separation of the three branches of government, thereby limiting the extent to which the President hold sway over Congress.
In Federalist 77, Hamilton addresses the inverse — that the Senate will have undue influence on the President, and rejects that objection on similar grounds — the two branches operate independently. He draws a comparison to the way that people are appointed to office in New York:
The council of appointment consists of from three to five persons, of whom the governor is always one. This small body, shut up in a private apartment, impenetrable to the public eye, proceed to the execution of the trust committed to them.
The room where it happens, the room where it happens….
It is known that the governor claims the right of nomination, upon the strength of some ambiguous expressions in the constitution; but it is not known to what extent, or in what manner he exercises it; nor upon what occasions he is contradicted or opposed.
And this is a bad way to go about, it Hamilton says:
Every mere council of appointment, however constituted, will be a conclave, in which cabal and intrigue will have their full scope. Their number, without an unwarrantable increase of expense, cannot be large enough to preclude a facility of combination. And as each member will have his friends and connections to provide for, the desire of mutual gratification will beget a scandalous bartering of votes and bargaining for places. . . Such a council would also be more liable to executive influence than the Senate, because they would be fewer in number, and would act less immediately under the public inspection. Such a council, in fine, as a substitute for the plan of the convention, would be productive of an increase of expense, a multiplication of the evils which spring from favoritism and intrigue in the distribution of public honors, a decrease of stability in the administration of the government, and a diminution of the security against an undue influence of the Executive.
In other words,Hamilton says, it won’t work. A small body of people would actually be MORE likely to be influenced by the President, and even if not, it will be nothing more than a “cabal” of appointing civil servants who are favorable to their personal interests, or the subject of bartering. (Hamilton used New York as his counter-example because the Federalist Papers were written for the benefit of New Yorkers, printed in New York papers, in the hopes of convincing the public that the newly-written Constitution needed to be ratified by New York)
And so we are back again to the argument that Hamilton makes repeatedly throughout the Federalist Papers — the Constitution serves as a compromise between the efficiency of having an all-powerful executive (or “king”) on the one hand, and the “checks and balances” that flows from three independent but interdependent branches of government.
But, as Hamilton stresses throughout his Federalist essays, more power rests in the executive branch. The prior attempt at a Constitution — the Articles of Confederation — was a horrible document that envisioned the United States as a loose confederation of sovereign states (like the South tried to do in the Civil War). That was found to be unworkable, particularly when you have national interests at stake, like say, fighting the British. That is why “federalism” — the concept of a strong national government headed by a stronger executive branch — was what the framers of the Constitution envisioned. (And yes, there are Anti-federalist Papers too — the losing side).
In researching this, I did extensive searches of Hamilton’s voluminous papers (that boy wrote NON-STOP), and came across a letter from Hamilton to Washington dated May 5, 1789. Hamilton, ever the micro-manager, is making respectful suggestions about “presidential etiquette” — i.e., who the President could and should meet and for how long — in order to maintain the healthy administration and “dignity of the office”. He approves that the President meet with Senators, but not Representatives, because Senators, being “coupled” with the President on matters such as judicial appointments, are “in a degree his constitutional counsellors.” Again, this shows that cooperative but inferior role that the founding fathers saw the Senate in comparison to the President when it came to Article II appointments.
Hamilton was very big on checks and balances, which is why he believed that the executive branch and, to a lesser extent, the legislative branch, should have some say over the membership of the judiciary branch. All this was threatened in 1801, at the end of the Adams administration. The Federalists lost the election of 1800, and Jefferson was to take over the White House (thanks in no small part to Hamilton’s endorsement of Jefferson over Burr). But before Jefferson was inaugurated, the Federalist-controlled Congress passed the Judiciary Act of 1801 and the Organic Act for the District of Columbia. Along with other provisions, the laws reduced the size of the U.S. Supreme Court from six justices to five and eliminated the justices’ circuit court duties by creating 16 new judgeships for six judicial circuits. Basically, the laws created a number of new court-related offices, which the outgoing president, John Adams, proceeded to fill mostly with members of his own party.
Hamilton believed (correctly in my view) that this was an end-run around the Constitution, which provided that Supreme Court justices can keep their position for life tenure. The purpose of the end run by the Federalists was to eliminate a Supreme Court judge simply by reducing the number of justices from six to five. Hamilton wrote many essays and publications about how this violated the system of checks and balances, including one essay that contained this delicious paragraph:
These are the means contemplated by the Constitution, for maintaining the limits assigned to itself, and for enabling the respective organs of the Government to keep each other in their proper places, so that they may not have it in their power to domineer the one over the other, and thereby in effect, though not in form, to concentrate the powers in one department, overturn the Government, and establish a Tyranny. Unfortunate if these powerful precautions shall prove insufficient to accomplish the end, and to stem the torrent of the Imposter — Innovation disguised in the grab of Patriotism!
– Hamilton, March 1802
I’m found of this paragraph in that it envisions factions attempting to thwart the Constitution in the name of “patriotism”. Very prescient.
(Under the Jefferson presidency, Congress then passed the Judiciary Act of 1802, repealing the Judiciary Act of 1801, in April 1802. The new act increased the number of circuits from three to six, with each Supreme Court justice assigned to only one, where he would preside with the local district judges on circuit twice a year).
This was a couple of years before Hamilton met Burr in the fields of New Jersey (“everything is legal in New Jersey”), and well, you know the rest.