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.