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 17th and 18th 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 17th and 18th 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 18th – 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.
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