There has been some discussion in the news recently, to put it mildly, about the power and authority of the President to appoint Supreme Court judges. Article II of the Constitution, dealing with the Executive, provides for the appointment of justices: The President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the Supreme Court.”
But in the Constitutional Convention of 1787, there was little discussion on the subject. Henry Steele Commager, an American historian, writes in The New Republic in May 1970 that “The Founding Fathers...gave relatively little attention (to the matter) and had only a hazy notion of the vital role the judiciary was to play in umpiring the federal system or in limiting the powers of government.”
When it was mentioned, it was usually in a jesting manner. Ben Franklin said during one debate on the subject that there had been only two methods mentioned - to either let the legislature make the appointments, or the president. He facetiously suggested a mode used in Scotland in which the lawyers made the nominations and always selected the ablest of the profession in order to get rid of him and share his practice among themselves!
It was Alexander Hamilton, writing in Federalist Paper No. 76 in 1788 who made a strong case for the President to always nominate the judges of the Supreme Court. If the people did it collectively, he wrote, it would give them little time to do anything else. This was a prescient observation when we consider the current controversy almost 230 years later about the President’s choices for the Court and how they are consuming the great bulk of the legislature’s time and energy.
Alexander continues: “... one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment. The sole responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation.”
He asserted that one man would have fewer obligations to any given nominee and therefore be less influenced “by the sentiments of friendship and affection” than an entire body of men who could easily become “distracted and warped by a diversity of views, feelings and interests.”
When an assembly of men make an appointment to office, Hamilton writes, “ 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 will 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.”
The consequences of making an appointment under these guidelines would result in a “bargain”, as in “Give us the man we wish for this office, and you shall have the one you wish for that. 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.”
Finally, in Federalist No. 78 Hamilton argues for complete independence of the judiciary from the other branches of government: “...liberty can have nothing to fear from the judiciary alone, and that nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be regarded as an indispensable ingredient in its constitution, and as the citadel of the public justice and the public security.
© Joan Rowden Hart Sept 2019
Comments