By the time the assembled delegates resumed discussing the character and powers of the Senate on July 18th, 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 4th 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 18th, 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.
No comments:
Post a Comment