The Purpose and Powers of the Senate, Part VIII: Security and Responsibility, contd.

Following the brief but much needed interjection of Connecticut’s Mr. Ellsworth, New York’s Gouverneur Morris then swung the focus of the discussion back towards an examination of the mechanics of judicial appointments. As he had made clear at the end of the conversation on the 18^th, he supported Madison’s proposal, not only because it seemed to make practical sense, but because it also appeared to promote – on the part of the proposed constitution – a necessary degree of internal consistency. Speaking to the former consideration, Morris believed, since it was likely that the various states would at some point find themselves pleading at the bar of the federal courts, that allowing the Senate to appoint the judges thereof would accordingly represent a distinct conflict of interests. This was, under the circumstances, a very keen observation. Under the auspices of the Articles of Confederation, there existed no national court system capable of adjudicating interstate conflicts. If one state injured another by way of some piece of policy, the only means by which any manner of solution might be had was if the two governments came together and hashed it out themselves. That this had been an exceptionally infrequent occurrence over the course of the 1780s – at the same time that the states’ commercial policies were often directly in conflict – was doubtless one of the main reasons why the Framers had fairly quickly agreed upon the notion that their new frame of government would include a hierarchy of national courts. By design, then, what Morris mentioned was exactly what was supposed to happen. States were supposed to bring their various disagreements with one another to be impartially adjudicated by the officers of the federal judiciary. But if these same officers were in turn to be appointed by the representatives of the states in the Senate, this would seem to represent, as aforementioned, something of a conflict. “Next to being Judge in one’s own cause,” the New Yorker thus observed, “Is the appointment of the Judge.”

In fairness to his colleagues who seemed not to have perceived that such a conflict might exist, Morris did not explain in detail exactly how it was that the states might use the power of appointment in the Senate to their benefit when it came time to argue their cases at the bar of the national courts. At this point, after all, it wasn’t yet clear precisely how the federal court system would end up being structured, nor to what extent – if at all – the various states would be able to exert their will upon the judges therein. Would there be a single national court to which the states could appeal directly for relief? Or would there be a series of courts organized along regional lines which would hear cases between petitioners first before sending them on appeal to the adjudication of a higher body? Whether or not the states could easily exert their will upon the judiciary would seem to depend very much upon which one of these arrangements was ultimately adopted. If there was only the single national court, it would seem to be fairly unlikely that the Senators chosen to represent a given state would be able either to sway their compatriots sufficiently to gain the appointment of a judge they knew to be preferential to their interests or to guarantee that said judge would be in a position to exert any influence upon their case when it finally came to time to be pleaded. If there were multiple tiers of courts, the states’ influence might theoretically be magnified, but only if the members of the Senate mutually agreed to defer the appointment of regional judges to the representatives of the states located in the relevant sections of the country. If this was not the case, and the Senators instead simply cast their votes as they pleased, the entire judiciary would doubtless end up being elected by a coalition of Northern states with no reference to the South whatsoever.

And for that matter, if the judges were to enjoy lifetime appointments, the whole idea of state influence over the officers of the judicial department would seem to be rendered entirely moot. Why should a judge chosen to sit on the national court for the rest of their life care one whit if the connivance of the government of Virginia was what got them there? To be sure, they would maintain some amount of affection for the state in which they were born and raised, but why should they fear ruling against it if the circumstances led them to do so? Over the course of their judicial career, the government that pushed for their appointment would surely be replaced, quite possibly with one whose philosophy they vehemently detested. In what way, then, might it constitute a conflict of interest if the judge in question heard the case of the state in question? How could a state government claim advantage if the judge to whose discretion they submitted their plea had been chosen by those whose political ideology they found fundamentally abhorrent? Mind you, Morris wasn’t guilty of wasting his compatriots’ time simply because he couldn’t answer these questions. In fairness to Morris, likely no one could. And in the meantime, while so much yet remained uncertain as to the final shape that the proposed constitution would take, it was absolutely worth considering how the granting of responsibilities to one branch of the government it described might affect the disposition of another branch thereof. Or, in the example that Morris brought to bear, how allowing one organ of the national government to make certain appointments might potentially affect the disposition of the governments of the states.

The other assertions which Gouverneur Morris gave voice to in support of the method of appointments which James Madison had previously proposed, while somewhat less significant to the broader project of the Philadelphia Convention, were nonetheless important ones within the context of the discussion at hand. His second point, for example, was very much of a kind with those previously offered in reference to the fitness of the executive to actually make the appointments in question. On the 18^th, Messrs. Martin and Sherman had both made the argument that the Senate, rather than the executive, would be most likely to possess an in-depth knowledge of potential judicial candidates and would be most likely to offer appointments to those who represented all the various regions of the country as a whole. This had been countered, in the moment, by Nathaniel Gorham’s assertion that Senators would likewise be forced to base their decisions on second-hand information in the event that a judicial candidate came from a state distant from their own, and was refuted again at the beginning of the present discussion when Madison curtly opined that the Executive, “Would in general be more capable & likely to select fit characters than the Legislature [.]” Morris’s addition to this back and forth was, unsurprisingly, to throw in his lot with Madison and Gorham. “It has been said [,]” he remarked,

The Executive would be uninformed of characters. The reserve was the truth. The Senate will be so. They must take the character of candidates from the flattering pictures drawn by their friends. The Executive in the necessary intercourse with every part of the U.S. required by the nature of his administration, will or may have the best possible information.

As with the cited comments of Sherman, Martin, Gorham, and Madison, this was arguably little more than a matter of opinion. The Senate, given that its membership would be derived from all of the states, certainly would be able to draw upon an exceptionally wide base of knowledge when it came time to make appointments to the federal judiciary. Would some among their number be forced to take their colleagues at their word when a candidate was brought to a vote with whom they had no personal experience? Most certainly. But this was likely unavoidable and didn’t necessarily disqualify the Senate from being able to effectively evaluate the fitness of potential officeholders. The ability of the executive, on the other hand, to make sound appointments based on their personal knowledge of “characters” would depend a great deal on the experience of the individual in question. Someone like George Washington, for example, who had met and worked very closely with a great many men from across the United States during his tenure as Commander-in-Chief of the Continental Army, might indeed have possessed sufficient direct knowledge of the relevant jurists to make very effective judicial appointments completely on his own initiative. But not every executive could be counted on to possess the same exceptional qualifications as the man most likely to inaugurate that office. In the event that the Framers granted the nation’s chief magistrate the primary responsibility for making judicial appointments, the elevation of someone possessed of lesser experience than the likes of Washington might accordingly present a significant problem. Bearing all of this in mind, it would seem fair to conclude that while Morris’s contribution to this aspect of the discussion at hand was perfectly valid in itself, it also couldn’t be said to represent a particularly definitive observation.

Morris’s third argument in favor of Madison’s method of appointments arguably represented a somewhat keener study of the task at hand. What it amounted to, in essence, was a rebuttal to the assertion previously offered by Oliver Ellsworth that the office of executive should not have been overly empowered lest it become an object of undue suspicion and distrust among the citizenry of the American republic. In response to this, Morris pointedly opined that, “If the Executive can be safely trusted with the command of the army, there cannot surely be any reasonable ground of Jealousy in the present case.” It was a very cogent observation, to be sure, and one which again called attention to some of the assumptions under which the Framers were laboring. The assembled delegates had agreed to vest the office of chief executive with the powers of commander-in-chief, albeit within a framework which gave Congress the power to declare war. In spite of this very generous grant of authority, however, certain of these same individuals also showed themselves to be exceptionally reticent to allowing the office of executive to exercise responsibilities which were in many ways less vulnerable to being abused. Why was this the case? Why did a chief magistrate possessed of supreme military authority arouse not the slightest fear in the assembled delegates while the thought of someone in the same office appointing judges give some of them cause for apprehension? The answer, as was so often the case whenever the delegates came to discuss the nature of the proposed executive, had everything to do with the aforementioned Mr. Washington.

George Washington, as discussed above, was broadly understood by most of the delegates that had gathered in Philadelphia as being the man most likely to accede to the office of executive in the event that the document upon which they were laboring was ultimately adopted. Not only had the man made himself extraordinarily popular as a result of his successful leadership of the Continental Army during the late war for independence with Great Britain, but he was also, by all accounts, possessed of a number of very admirable traits. He was humble. He was upright. He was extremely restrained and thoughtful. People liked him, in short. Or, perhaps more to the point, they trusted him. And as far as the assembled delegates were concerned, this trust ran particularly deep in the context of military affairs. Was there anything at all to fear from granting the chief executive perpetual authority as commander-in-chief of the armed forces? Well, in point of fact, yes. The ability of English King Charles I (1600-1649) to summon and command his kingdom’s military completely outside the authorization of Parliament was one of the immediate causes of the English Civil War (1642-1651), one of the results of which was the development within Anglo-American political culture of a deep suspicion of standing armies under exclusive executive control. But was there anything at all to fear from granting George Washington perpetual authority as commander-in-chief of the armed forces? To this question, the assembled delegates would almost certainly have claimed that there wasn’t. Not only had they and their fellow American come to trust Washington almost implicitly, but they were perhaps even more inclined to give him free rein when it came to matter of military significance. His leadership had won the country its independence, had it not? And had he abused the trust which his countrymen chose to vest in him? Had he used the tremendous power that Congress had placed in his hands to overthrow the civilian authorities and make himself the perpetual overlord of America? Of course not. Rather, at the height of his power, he had resigned his commission and quietly retired to Mount Vernon. Why shouldn’t such a man once more become commander-in-chief?   

Morris’s apparent response to this kind of reasoning was not so much to reject it out of hand as to draw attention to the degree to which it was being unevenly applied. He was not unaffected by the luster that Washington gave off, after all. His support for greater executive input into judicial appointments made the most sense within a context in which Washington was the executive in question. But whereas certain of his colleagues at the Philadelphia Convention thought this kind of arrangement unacceptable, Morris found himself calling attention to the fact that their permissiveness and their suspicions were being inconsistently applied. Why was it that they trusted the executive to exercise total authority over the American armed forces but felt that granting him even partial authority over judicial appointments was a bridge too far? If Washington was going to be the first man to occupy the office in question, why should they have trusted him at one moment and doubted him in another? Likely, as aforementioned, Morris’s colleagues were willing to defer to Washington completely when it came to all things military while reserving some degree of caution in the disposition of powers more explicitly political. This was, to be sure, a fairly lopsided approach to the task of assigning administrative authority within a complex frame of government. Morris accordingly had every reason to point up the seeming contradiction in his colleagues’ behavior. By thus forcing his fellow delegates to confront some of their own assumptions – whether it was his intention to do so or not – he was arguably helping to ensure that the final product of their shared efforts was structured in a manner that was as thoughtful and as deliberate as possible.          

Delegate Elbridge Gerry of Massachusetts, in response to Madison’s proposal and Morris’s unqualified support of the same, chose this moment to make clear his fundamental rejection of the measures being considered. “The appointment of the Judges [,]” he said, “Like every other part of the Constitution shd. be so modelled as to give satisfaction both to the people and to the States. The mode under consideration will give satisfaction to neither.” Unfortunately, he did not go on to explain why he felt this to be the case in all that much depth. Echoing certain of his colleagues, for example, he said little more than that he found it difficult to imagine, “That the Executive could be as well informed of characters throughout the Union, as the Senate.” It also apparently struck him as, “A strong objection that 2/3 of the Senate were required to reject a nomination of the Executive.” Granting that such positions were valid enough in theory, Gerry would doubtless had made a much stronger case had he elaborated further as to the specific nature of his doubts and concerns. That being said, the counterpoint which he offered, if also more succinct than it ought to have been, nevertheless drew attention to a very interesting comparison. “The Senate,” he said, evidently by way of a closer, “Would be constituted in the same manner as Congress […] And the appointments of Congress have been generally good.”   

What Gerry meant to say by this, undoubtedly, was that by agreeing to restructure the Senate in such a way as to grant every state represented therein an equal number of seats, the assembled delegates were recreating the essential dynamic that then characterized the Continental Congress. In this latter body, while different states sent difference numbers of delegates to represent their interests, every state was required to vote as a single delegation. In consequence, while the likes of Virginia, Massachusetts, Pennsylvania, and New York were each far larger in terms of population than most of the other states combined, they were nonetheless forced to negotiate on a level playing field when it came time to formulate policy. That this should have also been the case in the Senate was evidently a source of reassurance for Elbridge Gerry, particularly in the event that the Senate was allowed to make judicial appointments on its own. “The appointments of Congress have been generally good [,]” he said, with the plain intimation that he felt the Senate’s would be as well. But while it was broadly true that the Senate, by way of its basic structure, would be given to function in a manner much like that of the Continental Congress, it was not necessarily the case that the latter’s appointments had always been good ones.

Under the terms of the Articles of Confederation, recall, there existed only a small number of federal officeholders. There were no national courts, save for a small appeals court intended to hear capture cases referred by the states, and no executive, and no cabinet. Congressmen elected a President, as aforementioned, from among their own number, chiefly to act as an impartial moderator of debates. And they also held open votes, at various time, to appoint a Postmaster General, a Superintendent of Finance, an Agent of Marine, a Secretary at War, and a Secretary of Foreign Affairs. But while these offices were not unimportant in terms of the nature of their responsibilities, it would be hard to say that the men who filled them were chosen based on a thorough survey of their talents and experience. On the contrary, far from making a careful examination of the field of candidates and then selecting, by way of internal discussion, the best possible individual for each of the offices in question, Congress instead tended to just create new official postings for whomever among their number had attended or was already attending to the responsibilities in question.

Benjamin Franklin, for instance, who became the first Postmaster General of the United States on July 26^th, 1775, had already served as the deputy-postmaster of British North America between 1753 and 1774. His appointment, therefore, while certainly a very sound one, also hardly required much effort on the part of Congress. He was one of the only men in North America at that time who possessed anything close to the requisite experience, after all, and he was also conveniently already serving in Congress. Much the same could be said for Franklin’s fellow Pennsylvanian, Robert Morris, whose status as one of the wealthiest men in the Thirteen Colonies, his extensive overseas commercial connections, and his previous service in the Continental Congress made him arguably the only logical choice for the office of Superintendent of Finance. Was Morris a poor choice for such an instrumental office during the tenuous final years of the Revolutionary War? Absolutely not. By all accounts, he was very successful in drastically reducing the costs of the ongoing war effort and did a great deal to help place the nascent United States on something at least resembling a sound financial footing. But he was also, by far, the most obvious choice for the job, and his appointment was as much a relief to Congress as a sacred trust which they discharged with care. Indeed, this was the character of most of Congress’s appointments over the course of the 1770s and 1780s, being more ad-hoc and situational than carefully thought out. There was a reason for this, of course. The war with Britain added a degree of urgency to just about everything Congress did. Doubtless its members would have preferred to act more deliberately, but circumstances so often required them to make swift choices with whatever information they had on hand. And so, for the most part, they offered appointments to those who were readily available, who had done the job in question at some previous point in their life, or who were doing the job already as part of some committee that Congress had created. And then, once the war was over, they simply let their appointees continue on as long as they pleased. If they could do the work and they were willing, why bother trying to replace them?

Bearing all of this in mind, Gerry’s observation would seem to reveal something significant about how at least some of the assembled delegates were inclined to think about the task at hand. In the Senate – as restructured under the terms of the Connecticut Compromise – Elbridge Gerry evidently saw a continuation of the national government described by the Articles of Confederation. Granted, there were going to be additional components to this new government besides the one chamber in which every state received the same number of votes, but this seemed not to matter very much to the gentleman from Massachusetts. The Continental Congress, to his thinking, had made good appointments in the past, and the Senate was going to function along the same lines as Congress, so it made perfect sense to grant the Senate responsibility for the same kinds of appointments. But while this was a perfectly logical position to take if one believed that the new government described by the proposed constitution was simply going to act as a continuation of the old one, it also tended to ignore the many alterations which the assembled delegates had agreed to make.

The new government, for example, would have a chief executive whose need to work alongside the various officers of state would almost certainly necessitate the former’s input into the latter’s eventual selection. It would also be a far more powerful government possessed of a wider swath of both foreign and domestic responsibilities, the nature of which would seem to require a much more thoughtful process of appointments. And it would also be the first American government not designed principally to meet the exigencies of wartime. Whereas the Articles of Confederation had been drafted with the intent to allow thirteen often quarrelsome states to make every important decision from within the same collective body – in which no single office or entity enjoyed any particular advantage – the proposed constitution envisioned something more complex, more carefully balanced, and substantially more considered. Rather than choose whoever was available and then leave them to their business indefinitely, the new government could afford to make a careful survey of its options and choose the best possible candidate. And because the proposed constitution also envisioned a more frequent rotation of officers and magistrates, this process of surveying and choosing would necessarily become a routine responsibility. No longer would someone secure appointment to federal office and proceed to remain in place for a decade or better. Officeholders would come and go with regularity, both because they had retired or died and because their term of service had expired. By way of the resulting repetition, Congress would naturally develop various procedures and preferences which would in turn set it even further apart from the ad hoc methods of its earlier days. That Elbridge Gerry appeared not to understand this – or else chose to ignore it – would seem to go some way to explaining why the debates which produced the United States Senate – no to mention the Constitution itself – proceeded as slowly and as clumsily as they did.

The Philadelphia Convention, it bears remembering, had not been called for the explicit purpose of drafting a wholly new governing charter for the United States of America. As an outgrowth of the earlier Annapolis Convention (September, 1786), which had been organized for the purpose of addressing certain commercial grievances which then existed between the various states, the stated objective of the later meeting in Philadelphia had been to allow for a wider discussion of potential modifications to the Articles. Granted, the assembled delegates did not limit themselves to this narrow mandate for very long. Within five days of its first session, the full Convention voted in favor of a motion introduced by Gouverneur Morris to proceed with the creation of a new national government comprised of distinct legislative, executive, and judicial branches. But even though this key motion did pass in the affirmative, it notably did not pass with unanimous support. The delegations of Massachusetts, Pennsylvania, Virginia, Delaware, North Carolina, and South Carolina all voted in favor, sure enough, but Connecticut’s delegation voted against it and New York’s delegates were evenly split. For almost the beginning, therefore, regardless of this strong showing in its favor, the notion that Articles should have been entirely replaced was still a source of disagreement. And as the Convention wore on into the summer, and as the new frame of government took shape, the nature of this disagreement likewise became clearer. The majority of the state delegations may indeed have voted in favor of making significant changes to the national government, but they were not necessarily in agreement as to their nature or degree.

Elbridge Gerry’s attempt, within the context of federal appointments, to draw a parallel between the Senate and the Continental Congress would seem to stand as a fairly straightforward case in point. Notwithstanding the many ways in which the former body would operate quite differently from the latter – as well as the various other institutions which it would be forced to operate alongside – Gerry still seemed to believe that reference to the apparent aptitude of the one gave some indication as to the likely viability of the other. Had the Continental Congress made good appointments in its day? Under the circumstances, yes, it had. But was the Senate, regardless of its broadly similar composition, likely to operate under virtually any of the same conditions? Most definitely not. The only reason, then, for Gerry to attempt to make such a comparison was that he still regarded the proposed national government as an extension of the existing one. To be sure, the specific responsibilities and some of the structure of Congress was to be altered. But in Gerry’s mind, it seemed, the body was fundamentally still the same one that had first been summoned in 1774. And if this was the case, why shouldn’t one take the example of the old Congress as a guide to the capabilities of the new one? The answer, of course, was because of how much else had been changed. The proposed constitution wasn’t going to much resemble the existing Articles, and the government which the former described was going to be unlike that which had been established at the end of the Revolutionary War.

As Elbridge Gerry, and those of like mind, either failed to see this or to persisted in ignoring it, the conversations which would in time give rise to a completely new frame of government proceeded in stops and starts. On one side was a more conservative vision – that of the members who either rejected the whole proposition of a new government or who had agreed to it with a fairly narrow mandate in mind – and on the other, that of radical reform. And while the latter would arguably come out ahead of the former in the end, it is nonetheless essential to acknowledge that the final draft of the proposed constitution was the product of a rigorous, multifaceted debate. That is to say, one faction of delegates didn’t simply bulldoze its way to the conclusion that it preferred. There was a back and forth. A push and pull. Action, reaction, and then, finally, compromise. The results were not always what anyone might have desired, but they almost always represented the balance of interests then at play. Take the final votes of the 21^st held on the subject of appointments by way of example. On the motion introduced by Mr. Madison – most definitely one of the reformist delegates – that the executive should nominate federal judges and the Senate should possess a veto only on a two-thirds majority vote, only Massachusetts, Pennsylvania, and Virginia gave their support. Then, on a follow up ballot to affirm the appointment of federal judges by the Senate alone, only Massachusetts, Pennsylvania, and Virginia withheld it. Evidently, regardless of the substance of the arguments that had been offered, the issue had broken down along lines of common interest.

            The states who stood to wield greater sway over the executive branch and in the lower house supported greater executive influence over judicial appointments. The states whose influence over the national government would be rooted in the Senate supported allowing that same body to make judicial appointments on its own. Granting that this might seem like a rather petty disagreement, the mere fact of it spoke to how much had already been agreed. Just as Messrs. Gerry and Madison were of like mind as to the necessity of change but of quite different opinions as to its proper nature and degree, the two groups of states whose votes are noted above were in broad agreement on certain fundamental facts while in disagreement as to certain specifics. All of the states, at this stage, were supportive of there being a distinct executive branch, and a judicial branch, and an expanded legislative branch. And they had managed to hash out, for the most part, how they were each to be represented therein. What remained, and what they then proceeded to clash over, was the proper allocation of certain powers and responsibilities. Would the executive be particularly active and powerful or deliberately passive and weak? Should the Senate share in certain executive prerogatives? Was it important that the judiciary reflect the varied character of the nation as a whole? Different delegates – based on their personal experiences and philosophies – and different states – based on their economic interests and strategic priorities – had different answers to these questions, the final result of which was a constitution that at times sought to balance competing interests more than it endeavored to provide the American people with a particularly sensible framework of government.

The Purpose and Powers of the Senate, Part VII: Security and Responsibility

While the motion of July 18^th by which the assembled delegates agreed to postpone any further discussion on the subject of judicial appointments specifically noted that the conversation would commence the following day, it actually took until July 21^st for the topic of appointments to be taken up once more. When it was, however, approximately halfway through the day’s discussion, the proposal which James Madison had previously floated was precisely where the matter resumed. His preferred plan, recall, was that, “The Judges should be nominated by the Executive, & such nomination should become an appointment if not disagreed to within days by 2/3 of the 2d. branch.” While this kind of arrangement would, as aforementioned, play to the distinct advantage of the executive, Madison was nevertheless convinced that it was the soundest possible approach. First, he explained, “It secured the responsibility of the Executive who would in general be more capable & likely to select fit characters than the Legislature, or even the 2d. b. of it, who might hide their selfish motives under the number concerned in the appointment.” Second, it struck him that, “In case of any flagrant partiality or error, in the nomination it might be fairly presumed that 2/3 of the 2d. branch would join in putting a negative on it.” And third, as it seemed to him that, “The 2d. b. was very differently constituted when the appointment of the Judges was formerly referred to it,” the nature of that same body’s authority ought to be very carefully considered. The upper house of Congress and the lower house of Congress were now intended to represent two distinctly different interests; that of the people, in proportion, and that of the states, equally.   

If the 2d. branch alone should have this power, the Judges might be appointed by a minority of the people, tho' by a majority, of the States, which could not be justified on any principle as their proceedings were to relate to the people, rather than to the States: and as it would moreover throw the appointments entirely into the hands of ye. Northern States, a perpetual ground of jealousy & discontent would be furnished to the Southern States.

There is, of course, a great deal to unpack in these claims. On the first point, having to do with “responsibility,” Madison was evidently returning to one of the assertions he put forward during the discussions of July 18^th. Then, in an attempt to promote an earlier iteration of his preferred mechanism of judicial appointments, he claimed that the two qualities which his desired method would serve to promote were responsibility – by way of the executive – and security – by way of the Senate. At the time, he declined to elaborate as to precisely what it was he meant, leaving his intentions to instead be inferred. On July 21^st, however, he finally deigned to give some specific explanation. The executive, he said, “Would in general be more capable & likely to select fit characters than the Legislature, or even the 2d. b. of it, who might hide their selfish motives under the number concerned in the appointment.” Laying aside his feelings as to the “capability” of the executive to choose “fit characters” to fill the judiciary – a claim which had been variously supported or refuted by a number of Madison’s colleagues during the discussion of July 18^th – his focus on the notion of accountability is most definitely worth noting. It was evidently Madison’s belief that a successful judicial appointment was one for whom a specific authority could be held directly to account. Granted to a singular executive, this kind of power could only be abused for so long. They would not be able hide the fact that they had appointed someone who was inept, or that their motivations for making the appointment had been less than public-spirited, and they would be punished appropriately at the ballot box. Granted to a collective body like the Senate, however, and the authority to appoint the officers of the federal courts might become a free license for particular interests to sow corruption and nepotism. Who could say, for a fact, whether a given judge had been appointed by way of a unanimous affirmation of their talents or because a single self-interested Senator had introduced the notion and then bargained their way into securing majority support? No one. An executive might act out of similarly squalid motivations, of course, but they would be unable to hide behind a body of equals. And it was for this reason, among others, that Madison privileged their input.

By way of his second point, Madison once again seemed to be echoing certain of his contributions to the previous discussion. Then, on July 18^th, he had asserted that granting the upper house of Congress the authority to approve or reject the judicial appointments of the executive by way of a one-third vote would effectively secure the nation against, “Any incautious or corrupt nomination [,]” by the former. The exact nature of his proposal had somewhat changed by July 21^st, but he nevertheless persisted in making the same basic argument. “In case of any flagrant partiality or error, in the nomination [,]” he affirmed, “It might be fairly presumed that 2/3 of the 2d. branch would join in putting a negative on it.” The shift form one-third to two-thirds was most definitely a significant one, representing less than a majority on the one hand and more than a majority on the other. That being said, the odds were still tilted in favor of the chief magistrate. Requiring only a one-third concurrence would have allowed a given executive to make judicial appointments with the approval of as few as nine Senators out of twenty-six representing as few as five state delegations. But while increasing the minimum threshold up to eighteen Senators representing as few as nine state delegations would appear to shift the balance dramatically in favor of the Senate, the fact that a two-thirds vote would only be required to reject an appointment once more played into the hands of the executive. If Senators were intended to be men possessed of significant wealth in the form of property, after all, and if the management of said property required no small amount of their attention, why should they have bothered to muster themselves for a vote if they could instead call their session to an early recess without impairing the business of government? And if the vote in question would require a two-thirds majority to come down in the affirmative? How often was two-thirds of the Senate likely to agree on anything? Bearing this in mind – and as previously discussed – Madison’s plan would have thus allowed the executive to depend upon the determined inactivity of the Senate to secure the appointment of any but the most egregiously unqualified judicial candidates.      

The third point which Madison deployed in favor of his stated proposal was perhaps the most interesting yet. To begin with, as his fellow Virginian Edmund Randolph had done on July 18^th, he prefaced his commentary by making note of the fact that, “The 2d. b. was very differently constituted when the appointment of the Judges was formerly referred to it [.]” Pursuant to the terms of the Connecticut Compromise, seats in the Senate were now to be apportioned equally among the states regardless of population. Bearing this in mind, Madison elaborated, “If the 2d. branch alone should have this power, the Judges might be appointed by a minority of the people, tho' by a majority, of the States [.]” Not only would this represent an unacceptable inversion of one of the fundamental principles of Anglo-American political culture – namely, majority rule – but as, “It would moreover throw the appointments entirely into the hands of ye. Northern States, a perpetual ground of jealousy & discontent would be furnished to the Southern States.” There was something to these arguments, to be sure. It was true, for example, that allowing judicial appointments to be ratified by a simple majority in the Senate would have allowed a coalition of states representing a minority of the population to decide which nominations were sustained and which were rejected. Raising the threshold to a two-thirds majority would still have allowed for an affirmative vote that did not include the four largest states – Virginia, Massachusetts, New York, and Pennsylvania – but would also have made such an outcome substantially unlikely. It was also true that the Northern states – numbering eight – could have consistently outvoted the Southern states – numbering only five – in the event that a simple majority was needed to approve judicial appointments. In the event that the standard of approval was raised to that of a two-thirds majority, the eight Northern states would have required at least one Southern state to sustain their desired judicial nominee. Granting that this was likewise a possibility, it would also have been an exceptionally unlikely one.

Madison’s preference for a two-thirds vote would accordingly seem to have been manifestly sound, at least to the extent that it would favor majoritarian consensus over minority rule or sectionalism. The only issue, once again, was that it would have placed far greater discretion in the hands of the executive than in those of the membership of the Senate. For Madison, this was entirely by design. If the Senate was going to be characterized by the parochial concerns of its members and the regional rivalries that developed as a result, then it made all the sense in the world to attempt to counter the worst effects of the same by binding it – in the specific context of judicial appointments – to the more focused discretion of the executive. The latter being the only magistrate in the whole of the United States who could legitimately claim to speak for the American people as a whole, they could accordingly be expected to balance the specificity of perspective inherent to the Senate with a clarity of vison and a breadth of knowledge entirely befitting their role as the chief guardian of the law. For others among the assembled delegates, however, possession of a uniquely national mandate was not enough to warrant granting the chief executive unparalleled authority over the national courts. Charles Pinkney of South Carolina made this argument in perhaps the simplest terms imaginable. The reason that he was, “For placing the appointmt. in the 2d. b. exclusively [,]” he said, was that, “The Executive will possess neither the requisite knowledge of characters, nor confidence of the people for so high a trust.” Others had made this same argument previously, at least in part. Messrs. Randolph, Sherman, and Martin had all pointed out on July 18^th that a body of men drawn from each of the various states was more likely to be able to select individuals of different backgrounds and origins than a singular executive and would also be more likely to possess in-depth knowledge of individual personalities. But what did Pinkney mean by that other strike against executive discretion? Why wouldn’t the chief magistrate possess “the confidence of the people?”                

Connecticut’s Oliver Ellsworth provided an answer to this question when he attempted to propose his own preferred mechanism of judicial appointments. Or rather, he seemed to be attempting to propose a mechanism which might meet with the approval of the like of James Madison. In point of fact, he would have supported, “An absolute appointment by the 2d. branch” over any other arrangement that had so far been offered. But in what was likely an attempt to meet the supporters of a split prerogative halfway, he put forward a process that was substantially more complicated. If certain of his fellow delegates were going to continue to insist upon allowing both the executive and the Senate to weigh in on appointments, he opined, then why not allow for, “A negative in the Executive on a nomination by the 2d. branch, the negative to be overruled by a concurrence of 2/3 of the 2d. b. [?]” While this represented something of an inversion of the mode supported by Madison, it would still have preserved certain key aspects of the same. The executive would still have been possessed of considerable authority over appointments by way of a veto on nominations, and the Senate would still have been forced to meet the two-thirds threshold in the event that it desired to overturn the executive’s will. The only difference – significant though it may have been – was that nominations would originate in the Senate rather than with the executive.

Granted, this would have shifted the balance of power that Madison described away from the executive and towards the upper house of Congress, but not to a particularly overwhelming degree. Rather than grant an overwhelming advantage to the Senate, it would likely instead have created a sense of functional equilibrium. The Senate would have been quite unfettered in its ability to make nominations, the executive would have been entirely unhindered from rejecting those nominations out of hand, and the Senate would then have been forced to meet a particularly high threshold of consensus if it wanted to then overrule the executive. Arguably, the executive would still have enjoyed something of an edge – it being that much easier for one person to decide to do anything than for eighteen people to try to order lunch – but in return they would doubtless have been expected to explain to the American people the rationale behind their vetoes. As this would surely have introduced an element of restraint into the executive’s thought process, the advantage which they enjoyed would accordingly be only a slight one. They may not have needed to worry very much about their rejection being rejected, but their veto would almost always bear some degree of public scrutiny.

As to why Ellsworth should have been disinclined to be particularly generous to the nation’s proposed chief magistrate, his stated rationale was both straightforward and pragmatic. “The Executive [,]” he said, “Will be regarded by the people with a jealous eye. Every power for augmenting unnecessarily his influence will be disliked.” It was, upon consideration, a rather obvious thing to say. In its brief history between being unilaterally declared in the summer of 1776 and the first meeting of the Philadelphia Convention just over ten years later, the United States of America had never had anything quite like a national chief executive. Congress did have a presiding officer throughout this period, formally titled the President of the United States in Congress Assembled, but they acted more like a legislative moderator than a traditional head of state. In relation to what few responsibilities that national government then claimed, Congress itself accordingly functioned as the sole legislative and executive authority. And this was not by accident. Not only did a highly decentralized government which wholly lacked a cohesive leadership structure play to the preferences of the various sovereignty-minded state governments, but it also conformed philosophically to the assumptions and suspicions of an American political class that had emerged out of an often brutal and costly war for independence from Britain substantially disenchanted with the very concept of executive authority. Bearing all of this in mind, the Framers of the nation’s new governing charter should have known full well how hard it would be for some of their countrymen to accept the existence of an American chief executive. No doubt they meant well, fully believed in the necessity of what they proposed, and might even have been able to convince a large portion of the fellow citizens that executive power was not inherently untrustworthy. But they also had to be aware of the fact, as Ellsworth so rightly pointed out, that no small number of Americans would still look upon a chief executive of any kind, “With a jealous eye.”

Because he accordingly sought to ground a discussion which was otherwise taking place mainly in the realm of political theory, Ellsworth’s cited observation was arguably of exceptional importance to the success of the venture at hand. It was absolutely worth asking whether a single individual or a group of individuals would be better suited to selecting competent and trustworthy jurists within the context of a national government. It was also very much worth discussing how a grant of power over such selections would affect the behavior of the officials in question. Would this arrangement promote jealousy? Would that arrangement promote corruption? Such things were most definitely in need of being considered. But even if the assembled delegates went over every section of the proposed constitution ad nauseum until every one of them was satisfied that the framework they had created was as likely to succeed as possible, the whole enterprise would end up being for naught unless the American people were willing to invest it with their confidence. Granted, the concerns nursed by the American people were not always strictly rational. If the Framers were satisfied beyond a shadow of a doubt that the chief executive of the new government that they had created could be trusted not to abuse the powers assigned thereto, then there was a good chance that said framework was fundamentally sound. But if the people didn’t like what they saw? If the whole thing “felt wrong” to them? If they were scared? If they were suspicious? Well, then the enterprise would most assuredly fail. This, for the most part, seemed to be what Ellsworth – and Pinkney – was trying to say. Namely, that the proposed constitution which he and his colleagues were attempting to frame would need to satisfy the doubts of more than just those men then present in Philadelphia.

The Purpose and Powers of the Senate, Part VI: Best Informed of Characters, contd.

    While Messrs. Martin and Sherman had laid the groundwork for what would shortly prove to be fairly fruitful avenues of discussion, George Mason almost brought the conversation to a halt when he sought to pose a question on a matter of structure. Whatever mode of appointment which the assembled delegates ultimately agreed upon, he noted, would necessarily depend on how executive impeachments were to be tried. “If Judges were to form a tribunal for that purpose,” he continued, “They surely ought not to be appointed by the Executive.” Fortunately, though a thorough exploration of this topic and its implications might have easily dragged the proceedings some distance away from the considerations to which Martin and Sherman had lately brought to their colleagues’ attention, New York’s Gouverneur Morris found a way to very gently set the matter aside. First, he said, since the question had been raised, it was his opinion, “That it would be improper for an impeachmt. of the Executive to be tried before the Judges. The latter would in such case be drawn into intrigues with the Legislature and an impartial trial would be frustrated.” Under the circumstances, however, this was neither here nor there. As important as it may have been for the assembled delegates to eventually settle the question of where impeachments were to be tried, the present conversation was about something else entirely. And since, “No argument could be drawn from the probability of such a plan of impeachments agst. the motion before the House [.]” it would be best for all concerned if the focus of the present discussion shifted back to the question of judicial appointments.         

    This, fortunately, is exactly what occurred, with Madison next offering a slight amendment to Gorham’s aforementioned proposal. He was amenable, it turned out, to allowing the Senate to weigh in on appointments, notwithstanding the fact that his home state placed such authority in the hands of a joint sitting of the legislature. But he would have preferred, if at all possible, to tilt things somewhat in favor of the executive. Rather than require the assembled Senators to approve judicial nominees by a simple majority, Madison accordingly,

Suggested that the Judges might be appointed by the Executive with the concurrence of 1/3 at least of the 2d. branch. This would unite the advantage of responsibility in the Executive with the security afforded in the 2d, branch agst. any incautious or corrupt nomination by the Executive.

Evidently, the Virginian’s intention was to take best advantage of the different traits which the Executive and the Senate would each bring to the table. The Executive, as an individual, would be solely responsible for whatever nominations they made, and would thus be unable to shrug off their culpability in the event that one of their chosen officers turned out to be corrupt or incompetent. The Senate, meanwhile, as a collective body entirely separate from the office of chief executive, would be both more likely to ensure that the final appointment was a sound one and less likely to go along with some corrupt plan of the same. By splitting responsibility for judicial appointments between the two, Madison was thus aiming to combine “responsibility” with “security” to the benefit of the American people.

    Notwithstanding how balanced such an approach might seem, however, the 1/3 ratio that Madison called out would have granted to the executive a distinct advantage. Under Gorham’s plan, imagining a Senate comprised of two members for every state then in existence – amounting to twenty-six in all – a simple majority of fourteen votes would have been required before a judicial nominee received their commission. Under Madison’s plan, with the same appropriation of seats, a nominee would be granted their commission after receiving only nine votes. By way of this latter arrangement, a chief executive would accordingly need the complete acquiescence of only four state delegations and one additional member for their favored candidate to be confirmed to the federal courts. Not only would this make it possible for an executive nominee to take their place in one of the highest judicial bodies in the land despite the majority of Senators and the majority of states having voted against them, but the equality of representation in the Senate might also make it possible for the four smallest states to effectively control all judicial appointments. So long as the chief executive continued to favor the interests of those few, small states, he might accordingly have whomever it was he wished confirmed to the federal courts.

    Doubtless, this is not what Madison intended to take place. If he wished for the executive to wield total control over judicial appointments, he might simply have endorsed his colleague Wilson’s stated preference. And it was almost always the case during the discussions at hand that he favored as much splitting and balancing of different powers and responsibilities among the various organs of government as possible. That being said, his sense of the appropriate balance of power between the upper house of Congress and the executive was in this case distinctly skewed towards the latter. Perhaps, on some level, he agreed with those who felt that responsibility for judicial appointments rightly rested with the executive. He might not have been able to bring himself to say as much, but his “1/3 concurrence” was arguably as good as an admission of the same. He was clear enough, however, in his support for there being some role for the executive to play rather cutting them out entirely. Having heard the reasoning put forward by Martin and Sherman, Madison maintained what was by now his customary position. Namely, that few powers – if any – could safely be left in the hands of a single institution or officer of government. The exact mechanics of the resulting split, it seemed, were still subject to further discussion, but the necessity of the split itself appeared to have become settled in Madison’s mind.  

    Roger Sherman, at the same time, appeared just as convinced of the validity of his own position. In response to Madison, he made a point of reiterating that he was, “Clearly for an election by the Senate [,]” arguing to that end that the body in question, “Would be composed of men nearly equal to the Executive, and would of course have on the whole more wisdom.” By way of the term “equal,” one assumes Sherman meant to say that the various Senators – being the representatives of the nation’s landed wealth – would be members of the same social class as those most likely to occupy the office of chief executive. This being the case, the executive could not necessarily claim any real advantage in terms of experience or education when evaluating nominees to the various national courts. And since the Senate was to be comprised of a whole host of men, their combined expertise was bound to outweigh whatever capabilities a given executive might boast. Their, “Knowledge of characters [,]” Sherman went on to say, would also be more, “Diffusive [,]” and it would be, “Less easy for candidates to intrigue with them, than with the Executive Magistrate.” The former point, of course, was one which Sherman had attempted to make previously. Evidently, notwithstanding the attachment which certain of his colleagues maintained for the traditional classification of judicial appointments as a mainly executive prerogative, Sherman believed that achieving a broadly representative judiciary was more important than following a supposedly time-tested form. The latter point, however, was comparatively novel.

    Evidently, in the opinion of Roger Sherman, one of the things which he and his colleagues ought to have taken steps to guard against was preferential or otherwise corrupt judicial appointments in the event that such a responsibility was left up to the chief executive. And in point of fact, the notion that an executive might make someone a judge for reasons other than the latter’s competence or ability was far from unheard of circa 1787. English monarchs had historically filled some of the highest judicial offices in the realm based on little more than personal connections or an expectation of personal loyalty. Sir Robert Hyde (1595-1665), for example, who served as Charles II’s Lord Chief Justice between 1663 and his own death two years later, attained this paramount position in the contemporary English court system solely based on the recommendations of his influential cousin, Lord Chancellor Edward Hyde (1609-1674). George Jeffreys (1645-1689) then attained the same position in 1683 in gratitude from King Charles for his conviction of Lord William Russell (1639-1683) for his alleged participation in the Rye House Plot (1683). Jeffreys then used his authority as Lord Chief Justice to declare that Russell’s fellow plotter Algernon Sidney (1623-1683) was similarly guilty of treason. According to Jeffreys, and in defiance of the established standard that required two witnesses for a conviction of treason, Sidney’s published writings critical of absolute monarchy were sufficient evidence to condemn him to death though he had only one witness speaking against him.

    The Thirteen Colonies had also witnessed this same kind practice within their own local governments across the 17^th and 18^th centuries. In Pennsylvania, for instance, in 1684, a man named Nicolas More (16??-1689), who had been born in London and who claimed to have been a successful barrister, was appointed Chief Justice of the highest provincial court by colonial proprietor William Penn (1644-1718), which whom he had emigrated to North America. Owing to his purportedly condescending and combative behavior on the bench, More was impeached by the colonial assembly in 1685. But when said information was communicated to Penn, who was at that time absent on business in England, More was not removed from office. Evidently still confident in his abilities as a jurist, Penn instead decided to reinstate him as Chief Justice in 1686 as well as nominate him as one of the five members of the province’s executive council. While More was ultimately unable to take his place in the former office due to ill health, he remained in his role as the primary judicial authority in Pennsylvania until his death three years later in 1689. Similarly, almost a century later in colonial Massachusetts, veteran jurist James Otis Sr. (1702-1778) was passed over by Acting Governor Sir Francis Bernard (1712-1779) for elevation to the post of Chief Justice of the Supreme Judicial Court – in spite of having been promised the role by several prior governors – in favor of an inexperienced but ardently royalist local statesman named Thomas Hutchinson (1711-1780). Otis, it seemed, was viewed as insufficiently loyal to the Crown to receive such a prestigious posting, notwithstanding his position as one of the leading lawyers in the colony and his years of service as Attorney General. Hutchinson, by comparison, had no formal legal training, but was a noted royal favorite who had already been appointed to the post of Lieutenant Governor in 1758. His elevation to the office of Chief Justice in 1761 was accordingly just another means by which the Crown sought to reward one its most loyal servants in the colony. 

    Doubtless, it was examples very much like these which moved Roger Sherman to advocate for the complete removal of the appointment power from the hands of a theoretical American chief executive. Not all of his colleagues seemed to pay heed to such incidents during the discussion at hand, preferring instead – in spite of the manifest deficiencies thereof – to maintain the accustomed practice of allowing the executive to make judicial appointments. Granted, in their respective home states, this practice had widely been modified. In Gorham’s Massachusetts, the Governor shared his appointment power with an elected executive council, while in Wilson’s Pennsylvania, the executive whose responsibility it was to appoint officers to the various state courts was a collective body comprise of popular elected councilors. In spite of the existence of these various kinds of innovations, however, no one among the assembled delegates but Sherman and Luther Martin seemed willing to question the basic concept of executive input into the appointment of officers of the court. Their reasoning was simple enough, as Sherman explained it. It would be, “Less easy for candidates to intrigue with [Senators] than with the Executive Magistrate.” And shouldn’t this have been obvious? Demonstrably, in Britain and in the colonies, individuals had historically succeeded in being appointed to positions of judicial authority as a result of corruption, favoritism, and intrigue. If this was something which could happen, and had happened, when such appointments were left in the hands of a single individual, why shouldn’t the assembled delegates have strongly considered the notion of vesting this same responsibility in a collective body? Intrigue would doubtless still have been possible, but by multiplying the number of relevant individuals, it might at least become “less easy.”

    The next man to speak, Virginia’s Edmund Randolph, seemed broadly to agree with the position put forward by Messrs. Sherman and Martin. Like his colleagues from Connecticut and Maryland, respectively, Randolph believed that, “The hope of receiving appts. would be more diffusive if they depended on the Senate, the members of which wd. be diffusively known, then if they depended on a single man who could not be personally known to a very great extent [.]” Evidently, either on his own terms or having been convinced of the same, he had come to understand that diversity of perspective was an essential attribute of any prospective federal judiciary. And he also appeared to take it as a matter of practical fact – like Martin in particular – that a group of men possessed of varied experiences and connections would be better equipped to offer useful input into the process of judicial appointments than any single individual ever could. Given that Randolph was from Virginia, whose constitution – as aforesaid – mandated the appointment of judges by a joint ballot of the state assembly, this would all seem to be par for the course. But before giving voice to any of these convictions, he first made note of a potentially problematic fact. While Randolph stated that he was more willing to allow the Senate to make all judicial appointments than grant that same responsibility to the chief executive, he also evidently felt it worthwhile to note that, “When the appt. of the Judges was vested in the 2d. branch an equality of votes had not been given to it.” For his own part, as aforesaid, this did not change his opinion. The Senate, he believed, was simply better equipped to do the job. But perhaps certain of his colleagues had lost track of this latest modification to the structure of the upper house. Perhaps, as they were arguing over the merits of granting full or partial responsibilities to the same, they had forgotten that the Senate was set to be an equal rather than proportional body. Might a remembrance of the same change their opinions? Was an equal Senate better suited to the task at hand, or did this latest change render it wholly inadequate? These were exceptionally significant questions, to be sure, and ones to which Randolph had every reason to draw attention.

    Gunning Bedford, as it happened, was quite unmoved by this reminder. The gentleman from Delaware, perhaps because he knew his home state would wield the same power as the likes of Pennsylvania in an equal rather than proportional Senate, believed, “That there were solid reasons agst. leaving the appointment to the Executive. He must trust more to information than the Senate [,]” and, “It would put it in his power to gain over the larger States, by gratifying them with a preference of their Citizens.” The former assertion had of course previously been offered in turn by both Martin and Randolph. A chief executive, being but one man possessed of one lifetime’s worth of experience, would inevitably be forced to take the word of others when making judicial appointments. That, or they would be given to draw exclusively from their personal stock of friends and acquaintances. The latter point, however, was a new one in the context of the discussion at hand. It wasn’t that Bedford was breaking new ground by warning of the possibility of corruption, but rather by noting the specific method by which corruption might be facilitated. Granting the chief executive the exclusive right to make judicial appointments, he affirmed, “Would put it in his power to gain over the larger States, by gratifying them with a preference of their Citizens.” In the context of a conversation about the prerogatives of the Senate, this might seem like a strange sort of comment. Why should it have mattered if the chief executive gained the favor of the large states when every state represented therein was to possess the same representation and the same number of votes? The answer, upon reflection, is obvious enough. It indeed may not have mattered if the large states favored the chief executive in the Senate in exchange for his nomination of their preferred judicial candidates. But it would matter a great deal if a favor granted to a state by way of a preferential judicial appointment was answered in the House by the proportionally overwhelming support of the largest delegations therein. In exchange for a few judges, in essence, an executive might guarantee the passage of whatever laws they wished.

    Bedford was hardly the first among his colleagues to attempt to widen the scope of the ongoing discussion by reminding them that the task at hand was fundamentally a holistic one. It wasn’t, to put it another way, that they were crafting a set of discrete mechanisms which would be fitted together in the final analysis. Rather, the assembled delegates were attempting to form a wholly new constitution for the United States of America that both served a particular set of objectives and was internally consistent. Bearing this in mind, it would have done no good at all for them to have agreed upon a set of powers for the Senate if the use of those powers ultimately imperiled the viability of the document as a whole. George Mason had tried to bring this same perspective to bear when he earlier made note of the potential connection between judicial appointments and trials of impeachment. At the time, as noted above, the point was gently laid aside, though this by no means should be taken to indicate that Mason’s insight was not a worthy one. It was just that it looked set to pull the focus of the discussion away from the subject at hand. Bedford’s observation, by comparison, seemed to balance both the specific context of the moment with an awareness of the larger implications of the same. Yes, the assembled delegates were specifically talking about whether to grant power over judicial appointments to either the Senate or the chief executive, and Bedford was specifically offering his fairly ardent support for the former. But in so doing, he was also reminding his colleagues that neither the Senate nor the chief executive could rightfully be thought of in isolation. Grant a power to the Senate, and its relationship to the executive would change. Grant a power to the executive, and its relationship to the Senate would change. Try to isolate the Senate from being unduly affected by the executive, and the executive would try to assert themselves upon the lower house instead. Every bequest of responsibility or retraction of the same would affect the whole mechanism of government in addition to the officer or institution in question. If the assembled delegates were to hold out to their efforts any possible hope of success, they needed to keep this fundamental maxim in mind.

    For the moment, however, matters proceeded apace. Following a brief interjection by the aforementioned Nathaniel Gorham – during which he questioned Bedford’s assertion that the executive, any more than the membership of the Senate, would be forced to rely on the advice of others when making  judicial appointments – debate was concluded and the matter at hand was put to a vote. On the motion offered by Mr. Wilson and seconded by Mr. Morris, to refer, “The appointment of the Judges to the Executive, instead of the 2d. branch,” the final tally was two in favor, six opposed, and one absent. It is worth noting that the two states who voted in favor were Massachusetts, whose Governor was empowered to make judicial appointments with the aid of an elected council, and Pennsylvania, whose multi-person executive made judicial appointments on its own authority. At this point, Mr. Gorham rose to speak again, this time to make an official proposal out of his prior recommendation that the chief executive should offer judicial nominations and the upper house of Congress should evaluate and vote on the same. “This mode [,]” he avowed, “Had been ratified by the experience of 140 years in Massachussts. [and] If the appt. should be left to either branch to the Legislature, it will be a mere piece of jobbing.”

    The former point, of course, was much the same as Gorham had offered previously. Unsurprisingly, he felt that the practice of his home state represented by far the best model which the assembled delegates could seek to emulate. The latter point, however, would seem to want some explanation, particularly in terms of the semi-archaic word “jobbing.” Within the context of the 17^th and 18^th centuries, “jobbing” was a general term meant to describe the practice of using public office for the purpose of private gain. In the case of judicial appointments, therefore, Gorham seemed to believe that allowing the House or the Senate to wield the relevant authority alone would inevitably result in federal judgeships being exchanged for personal favors. As to why this should cease to be the case in the event that the chief executive was looped into the process, it is not entirely clear. Perhaps Gorham felt that the kind of person likely to ascend to the office of executive would also be inherently less likely to be swayed by thoughts of personal gain. Or maybe he simply felt that the diverging interests of the executive and the Senate would combine to make it particularly difficult for them to be successfully swayed all at once. Whatever the case, he explained himself no further.

    Gouverneur Morris, as it happened, seemed not to need much explanation. As he had supported Wilson’s earlier, failed motion, so he supported Gorham’s, evidently because he held an ardent belief in the right of the executive to make all judicial appointments. Mr. Sherman supported it as well, though with comparatively little enthusiasm. Apparently, he thought that Gorham’s proposal was, “Less objectionable than an absolute appointment by the Executive [,]” though he nevertheless, “Disliked it as too much fettering the Senate.” Here, it seemed, Sherman was once more attempting to strike a balance. He plainly did not favor the idea of allowing the chief executive to make judicial appointments on their own and would much have preferred to allow the Senate to make such decisions without any external interference. That said, given that he and Luther Martin were the only delegates in attendance who seemed to be of that opinion, he accordingly expressed his admittedly hesitant willingness to throw in with the proposal of the gentleman from Massachusetts. Evidently, Mr. Gorham had hit on something of value. But while the resulting vote arguably bore this notion out, the matter at hand was to remain unsettled for the foreseeable future. With Georgia continuing to vote “absent,” the final tally on Gorham’s motion was four states in favor – Massachusetts, Pennsylvania, Maryland, and Virginia – and four states opposed – Connecticut, Delaware, North Carolina, and South Carolina. As before, the states that allowed for executive input into judicial nominations – with the exception of Virginia – voted in favor of the motion while those that left judicial appointments entirely to their respective legislatures – with the exception of Delaware – voted against it.

    At this stage, James Madison endeavored to move another, similar motion. Namely, in a slight modification of his previous plan, he proposed, “The Judges should be nominated by the Executive, & such nomination should become an appointment if not disagreed to within days by 2/3 of the 2d. branch.” Thus transforming the active consent of the Senate into a form of passive consent inarguably played to the advantage of the executive. By submitting every judicial nomination to upper house scrutiny, the executive would have no choice but to always consider the bare minimum amount of support which a given nominee would require. If the only vote which the Senate could hold on the matter was a negative one, however, likely only the most objectionable nominees would garner the necessary attention. In most other cases, given the option of attending to their own business or debating and voting on the nomination of a mildly disagreeable nominee for the federal courts, most Senators were likely to choose the former. This arrangement was further weighted in favor of the executive by requiring a two-thirds majority in the Senate for a rejection rather than a simple majority of fifty percent plus one. Knowing that fully two-thirds of their number would be required to register their objection, Senators would surely have been even less likely to bother considering a vote of rejection unless the nominee really was wholly unacceptable. Under these circumstances, a canny executive might manage to slip any number of partially qualified but well-connected candidates past the scrutiny of the Senate while still preserving the illusion that he was being strictly held to account.

    Gouverneur Morris, doubtless to no one’s surprise, seconded Madison’s motion. Any plan which promised to allow the executive some input into judicial appointments evidently enjoyed his unqualified support. But before the matter could be put to a vote, or even before it could be subjected to open debate, the conversation was for some reason unanimously postponed. The day’s session had not come to an end, mind you. Indeed, several other matters were to be discussed at some length. For the moment, however, it seemed that the subject of judicial appointments had worn out its welcome. And what had been accomplished? Had the delegates settled on a mechanism whereby federal judges were to be commissioned? Had they at least come to some agreement as to the basic objectives they hoped to achieve? The answer, on both counts, was no. Some delegates, it had become clear enough, were attached to the notion that the executive ought to weigh in on judicial appointments, though they were split as to whether this power should be shared or exclusive. Some delegates, it had become equally apparent, believed that the legislature should have a substantial role to play in the process, though they, too, were similarly divided. And then there were those few, regardless of what their position happened to be, who had expressed some idea as to what they actually hoped to accomplish. It wasn’t just that the assembled delegates ought to be trying to figure out the best way to appoint federal judges, they explained. It was that they should be seeking the best mechanism for appointing the best judges possible. Bearing all of this in mind, it would seem fair to say that while it was not yet – circa July 18^th – the least bit clear what kind of authority the Senate would ultimately possess in the realm of appointments, the topic was far from the back of anyone’s mind. Many of those involved held quite strong views on the subject, and many of them had clearly given the matter a great deal of thought.

The Purpose and Powers of the Senate, Part V: Best Informed of Characters

     By the time the assembled delegates resumed discussing the character and powers of the Senate on July 18^th, the nature of the conversation had substantially shifted from what it had been at the end of the previous month. Having realized, as aforementioned, that their efforts would be in vain unless they could settle upon a single overall administrative framework, the members of the Philadelphia Convention resolved to form a “Committee of Twelve” for the purpose of hashing out a compromise proposal which most of those in attendance would find fundamentally agreeable. The result of this effort – having taken place mainly over the course of that year’s July 4^th observance – was the Connecticut Compromise, so called because it closely mirrored the proposals previously put forward by Connecticut natives Roger Sherman and Oliver Ellsworth. But while the resulting settlement quite effectively struck a balance between a Congress defined by population and one in which every state received an equal number of seats – and while it would, at length, be ratified by the Convention as a whole – disagreement over the manner in which state populations would be tallied placed a final resolution of the question on hold. In the meantime, however, as a second compromise was actively being negotiated, the notion that the upper house of Congress would represent each state in equal measure – as proposed by the Committee of Twelve – sparked another round of discussion as to the extent of that’s body’s powers and responsibilities.

    Specifically, beginning on the aforementioned date of July 18^th, the delegates turned their attention to the topic of the Senate’s prospective authority over appointments. Nathanial Ghorum of Massachusetts provided his colleagues with an opener when he proposed that they agree to adopt the same model that had been in practice in his home state for many years. Referring to federal justices in particular, “He suggested that the Judges be appointed by the Executive with the advice & consent of the 2d. branch, in the mode prescribed by the constitution of Masts.” In point of fact, of course, this wasn’t quite “the mode prescribed by the constitution” of Ghorum’s home state. As previously discussed, the new governing charter adopted in Massachusetts upon popular ratification in October of 1780 assigned the right to “advise and consent” to the governor’s judicial nominations to a council comprised principally of eight individuals appointed by the state assembly and confirmed by the state senate. Rather than replicate the exact arrangement with which he had the most experience, Ghorum was instead suggesting something like a merger of his home state’s procedure with that of, say, Virginia. In that state, unlike in Massachusetts, all judicial appointments were subject to a joint ballot of the two houses of the state assembly. This kind of legislative empowerment seemed not to sit well with Ghorum, who had evidently grown accustomed to a more efficient way of doing things than simply polling every elected lawmaker available. That said, he also notably did not propose the creation of yet another federal institution. The Senate, as defined by the Connecticut Compromise, would be a fairly small body at the outset, and doubtless capable enough of delivering its consent in a timely fashion. And since legislative authority over judicial appointments had clearly been deemed an acceptable method in a number of states, it made a certain amount of sense for Ghorum to attempt to split the difference between what he preferred and what a majority of his colleagues would likely prefer by granting advice and consent to the Senate.

    Though each of them did so with different reasons in mind, the next three delegates to speak demonstrated the wisdom of Ghorum’s approach by largely voicing their agreement with his proposal. Pennsylvania’s James Wilson did so with the most hesitation, stating they he’d have preferred to vest appointment power in the executive branch alone. Only if this more straightforward mode, “Could not be attained [would he] prefer in the next place, the mode suggested by Mr. Ghorum.” Marylander Luther Martin went further still. Indeed, he was, “Strenuous for an appt. by the 2d. branch. Being taken from all the States it wd. be best informed of characters & most capable of making a fit choice.” And then came the aforementioned Roger Sherman of Connecticut, who, “Concurred in the observations of Mr. Martin, adding that the Judges ought to be diffused, which would be more likely to be attended to by the 2d. branch, than by the Executive.” Between these three men – and all of them responding to the proposal of Mr. Ghorum – a number of noteworthy points were raised, not the least of which had to do with the essential nature of the appointment power and what goal it was that the delegates hoped to accomplish.

    Take Wilson’s comments, for example, as juxtaposed against Ghorum’s. While the former felt it most sensible to spread responsibility over judicial appointments between two sperate institutions who derived their authority from separate sources and were possessed of distinct priorities, the latter embraced this arrangement of accountabilities only reluctantly. Wilson was willing, as he said, to support, “The mode suggested by Mr. Ghorum [,]” but he, “Still wd. prefer an appointment by the Executive [.]” Unfortunately, Wilson chose not to explain exactly why this was the case, though one may draw certain conclusions based on the nature of the governments with which he was likeliest to be familiar. For he had been born, it bears recalling, in Great Britain in the 1740s, and spent the first twenty years of his life there while pursuing his extensive education. However much he came to disagree with British policy and British priorities, therefore, the basic tenets of the British Constitution would to some extent have remained core to his principal conception of how governments were structured and how they functioned from day to day. Wilson, of course, had thrown in his lot with the colonists, and had served as a delegated to the Continental Congress as early as 1776. But even if he disagreed vehemently with the methods by which the British executive had attempted to assert its authority over the Thirteen Colonies, this did not necessarily mean that he disagreed with equal fervor with the basic concept of executive power. Under the terms of the British Constitution, the Crown held exclusive authority over the appointment of officers of the courts. Had the American revolutionaries ever taken issue with this arrangement? Had they ever decried the prerogative in itself rather than the specific manner in which it was deployed? They had not, in fact. So why, then, under a system of codified government in America, shouldn’t the American executive enjoy the same basic privilege?

    There was also, of course, the probable influence of Wilson’s adopted homeland of Pennsylvania. As previously discussed, the Keystone State had adopted a constitution in 1776 which essentially abolished the office of governor as it had existed during the colonial era and transformed the former governor’s consultative council into a twelve-member executive with a rotating President and Vice-President. This Supreme Executive Council was then granted the sole authority to appoint, “Judges, naval officers, judge of the admiralty, attorney general and all other officers, civil and military, except such as are chosen by the general assembly or the people [.]” The Senate, as it was then being discussed by the assembled delegates, would seem to have closely resembled this directorial assembly in its basic form, size, and powers, which may have been why Wilson was willing – albeit reluctantly – to grant it authority over judicial appointments. But the two bodies also differed in one essential, irremediable facet. The Supreme Executive Council was, as its name plainly stated, the primary organ of the executive branch of the Keystone State’s government. It was an unusual kind of executive, to be sure, being a collective of twelve individuals elected to represent the various cities and counties of contemporary Pennsylvania, but the authority which it wielded was nonetheless fairly conventional. It was to handle matter of diplomacy, to enforce the laws, grant pardons and clemencies, and oversee the distribution of licenses. It was accordingly, in practice, a fairly traditional executive, and one which did not call into question the accustomed prerogatives of the same.

    The proposed Senate, meanwhile, was no kind of executive at all. Rather, it was intended to function as the upper house of the national legislature, and to accordingly be possessed of substantial input into the making of law. Its structure seemed to be quite similar to that of the aforementioned executive council, with equal representation for every major jurisdiction, and it was also bound to be quite small at the outset. But it was not intended to be an executive body. The United States would have a separate, singular executive, possessed of all the responsibilities over which such offices, in the Anglo-American tradition, customarily presided. Splitting off some of this customary power and granting a portion of it to the Senate would accordingly have represented a significant innovation in the eyes of those not otherwise acclimated to the concept. Granting the Senate the power to advise and consent to judicial appointments would not have been a novel thing from the perspective of someone who made their home in states like Massachusetts or Virginia, to be sure. As aforementioned, both of these states had sought to weaken their executives by transferring a portion of their traditional authority to some other organ of government. But for someone like James Wilson, who had been raised and educated within a political tradition that prized custom and came to innovation slowly – and who had then migrated to a jurisdiction wherein innovation still seemed to proceed along broadly traditional lines – giving a legislative body any share of executive power would doubtless have seemed very strange and inexplicable indeed. He was willing to hear the argument, as he said, being a man who tended towards reason and logic over ideological entrenchment. But his first preference, as likewise stated, was for a more traditional implementation of certain executive prerogatives.

    Luther Martin’s partial concurrence with Nathaniel Ghorum’s cited proposal was quite probably, like James Wilson’s objection, conditioned by the practice of his home state. Maryland’s constitution in fact closely mirrored that of Massachusetts by granting the power of advice and consent over executive appointments to a council elected by a joint ballot of the two houses of the state assembly. But while this similarity was likely one of the unspoken reasons that Martin favored a similar arrangement at the national level, the reason he gave voice to was something different altogether. “Being taken from all of the States [,]” he said of the proposed upper house of Congress, “It wd. be best informed of characters & most capable of making a fit choice.” Roger Sherman said much the same when he opined that, “Judges ought to be diffused, which would be more likely to be attended to by the 2d. branch, than by the Executive.” Between these two men, a point would thus seem to have been raised concerning desired outcomes in addition to desired mechanisms. Ghorum, as cited above, only proposed a particular mechanism of appointment without at all describing what that mechanism was supposed to accomplish. Indeed, his only stated justification was that the same method had been, “Long practiced in [Massachusetts], & was found to answer perfectly well.” Wilson’s half-hearted endorsement of this same method was somehow more deficient in reasoning, though his preference for a strictly executive appointment of judges would appear to indicate – as discussed above – a similarly personal attachment to a particular administrative form. Messrs. Martin and Sherman, on the other hand, made reference to a specific effect which they hoped that the relevant grant of power would elicit. In short, they felt that the Senate would be apt to make the best selections.

    Mind you, they made this claim in subtly different ways. Martin asserted that the Senate, “Being taken from all the States […] wd. be best informed of characters & most capable of making a fit choice.” To his thinking, it seemed, there was a direct correlation between the diversity of the Senate and the quality of the judicial appointments which it was likely to make. The membership of the lower house of Congress would also be drawn from across the various states, of course, but the notion that this body might instead provide advice and consent was quite absent from the conversation. Doubtless, this was because the aforementioned Connecticut Compromise – introduced, but yet to be ratified – had more or less settled the notion that the lower house of Congress would be apportioned according to population, thus rendering it too large and too unwieldly to provide input into executive appoints in a timely and efficient manner. This accordingly seemed to leave the delegates with small handful of possible options. They could allow the Executive to appoint federal judges on their own, they could split the appointment power between the Executive and a kind of privy council, they could split the appointment power between the Executive and the Senate, or they could allow the Senate to make the appointments on its own. Luther Martin, for his part, preferred the last of these arrangements, and appeared to do so for fairly practical reasons. By pointedly observing that the Senate would be “taken from all of the states,” he seemed to be rejecting the concept of a strictly executive appointment on the grounds that the executive would possess an overly narrow point of view.

    A singular executive, after all, however wide their experience and broad their education, would be from one particular state, possessed of one set of personal and professional experiences, and capable of cultivating a personal knowledge of only so many names, and faces, and career summaries, and job descriptions. They might see and experience a great deal more than most Americans might in their capacity as chief executive, but there would also remain just as much useful knowledge outside their understanding as inside it. A Senate, on the other hand, would be comprised of many people from across every state in the union who would possess between them several lifetimes’ worth of education, experience, and personal contacts. No one of them, of course, might come all that close to approximating the unique perspective and understanding of the chief magistrate of the American republic as a whole. But their combined expertise would doubtless eclipse that of any single officer of any state or federal institution. Would this necessarily make them experts in the field of Common Law jurisprudence? No, it would not. But it would at least increase the odds that someone among their number might have the foresight necessary to determine whether or not a given nominee for the federal courts was competent to the job. To vest this power solely in the hands of the executive – as was Wilson’s stated preference – would be to trust that the individual most likely to rise to the position of paramount leadership within the government of the United States would also be best qualified to evaluate the fitness of a Common Law judge. Luther Martin, it seemed, was not willing to go this far. Instead, he seemed to think it represented the more effective course of action to let a number of people possessed of different levels and types of experience to weigh in on the matter and deliver a final judgement between them. They would be, “Best informed of characters [,]” he said, and, “Most capable of making a fit choice.”

    Roger Sherman, as previously stated, closely agreed with Mr. Martin, though the reasoning to which he gave voice expressed a slightly different intention. Whereas Martin asserted that the Senate would be likelier to make a fit choice of judicial appointments than a singular executive, Sherman expressed the belief that quality wasn’t the only factor which ought to guide the process in question. “Judges [,]” he said, presumably in addition to being both competent and trustworthy, “Ought to be diffused, which would be more likely to be attended to by the 2d. branch, than by the Executive.” The significance of the term “diffused,” one assumes, was that Sherman felt it desirable that the federal judiciary be a mirror of the nation as a whole. Judges, like members of Congress, should have been drawn from across the union of states, with no one jurisdiction enjoying a preferential influence over the same. In this way, just as every state was to enjoy some amount of input into the process of legislation, every state might also take comfort in the fact that their particular experiences and interests were being spoken for in the federal courts. A singular executive might take steps to achieve exactly this outcome, of course, but they might just as well appoint federal jurists from only a handful of states or from their home state. One way or the other, there were no guarantees. Rather than depend on the former spontaneously coming to pass, therefore, Sherman favored an arrangement of responsibilities that would at all times make a “diffused” national judiciary the most likely outcome possible. Senators from Connecticut would favor judges from Connecticut, Senators from Virginia would favor judges from Virginia, and in time – and with a little horse-trading – everyone would get what they wanted.