Friday, January 7, 2022

The Purpose and Powers of the Senate, Part XXIII: “Each State Ought to be Able to Protect Itself”

    Beyond the changes that have been produced by the ratification of the 17th Amendment to the general behavior and average tenure of individual Senators, a significant alteration has also taken place in terms of the role which the Senate has taken to playing within the federal power structure. Previously, under the original terms of the Constitution, one of the Senate’s primary functions was to act as a kind of braking mechanism upon federal legislation that directly concerned or effected the states. Having been elected by members of the various state assemblies, individual Senators were ideally equipped to both communicate the concerns of their respective state governments to Congress and relay the competing priorities of Congress back to the former. In this way, a degree of harmonization was achieved whereby federal legislation was crafted with due consideration for how it would impact the states as distinct political entities while the specific priorities of the various states in turn became part of the legislative conversation taking place at the federal level. Granted, this is a somewhat idealized characterization of how the state/federal relationship actually functioned in the century preceding the ratification of the 17th Amendment, but one which nevertheless seems to conform to the intentions originally expressed by the Framers in 1787. Connecticut’s Roger Sherman (1721-1793) put it as succinctly as anyone could have at the time: “As the States would remain possessed of certain individual rights, each State ought to be able to protect itself [.]” Protection, in essence, was what the Senate was supposed to provide.

    By transferring the power of election from the state assemblies the general public, however, the 17th Amendment effectively nullified this give-and-take dynamic and transformed the United States Senate into a sort of miniature replication of the House of Representatives. Rather than function as the mouthpiece of the states as political entities within the context of the federal power structure, it has instead become just another part of that same administrative framework. Now, Senators are elected by the American people within a specifically federal context in order to execute specifically federal responsibilities. That is, they are sent to the Senate – as far as the voters are concerned – mainly to ensure that the inhabitants of every state have some degree of input into the appointment of Cabinet secretaries and federal judges as well as the ratification of treaties. The upper house does still perform the same legislative functions which have fallen within its remit since the Constitution was initially ratified, but the manner in which the American people and their Senator tend to conceive of these functions has substantially changed. Whereas Senators were previously positioned to debate, shape, and potentially obstruct legislation from the position of being agents acting directly on behalf of the states, they now approach these same responsibilities chiefly as members of a given party acting on behalf of these who support them. Some of them – indeed, many of them – do still profess to act with the interests of their home state in mind, even up to the point where they sometimes attempt to weaken the federal government so as to provide more latitude for state action. But many of them – perhaps even most of them – have also shown themselves to be perfectly willing to prioritize the national mandates of their respective parties over the specific local needs of the communities they claim to represent. They prioritize spending increases without necessarily accounting for the impact on their home states. They hand down federal directives without knowing how the governments of their states will fund them. Without in any way claiming these kinds of behaviors as evidence of disfunction, it would nonetheless seem fair to say that the Senate as it existed prior to the ratification of the 17th Amendment simply would not have been able to function in this way.

    As to the specific constitutional responsibilities of the Senate and the manner in which the application of the 17th Amendment has altered them, let us consider each one in turn. Beginning with the power to advise and consent to executive branch nominations, what changes there have been seemed to have been both subtle and indirect. This is rather in keeping with the nature of the responsibility itself and the extent to which it was ever closely affected by the legislative appointment of Senators. For the most part, during the era that preceded the ratification of the 17th Amendment, the state assemblies did not appear to take all that much interest in who was ultimately approved to fill this or that position in Cabinet. But there have been exceptions to this rule. Indeed, some of them are quite famous. In June of 1834, for example, the Senate voted to reject the nomination of Roger B. Taney for the post of Secretary of the Treasury by a final tally of 18-28. Not only did this represent the first ever instance in which the upper chamber had chosen to deny an attempted appointment on the part of the executive branch, but at least four of the Senators who voted to reject the nomination did so against the explicit instructions of the relevant state assemblies. Given the specific context – the so-called “Bank War” of 1832-1836 – and the partisan animosity to which it gave rise, it is perhaps not all that surprising that a state legislature might have found itself at odds with one of its own Senators. That being said, the fact is nonetheless worth remarking upon that at least some state assemblies made a point of providing specific instructions to their respective Senators as to how they should vote upon Taney’s nomination.

    A not dissimilar incident occurred in 1881 following the inauguration of Republican James A. Garfield (1831-1881) as President. The aforementioned New York Senator Roscoe Conkling had been, in the leadup to the 1880 Republican National Convention, both an ardent supporter of former-President Ulysses S. Grant (1822-1885) and an equally ardent defender of the so-called “Spoils System” of political patronage. To that end, Conkling – who effectively controlled the powerful New York Republican political machine – became the leader of his party’s “Stalwart” faction and sought to use his influence to secure a third nomination for President Grant, thereby guaranteeing the continuation of the traditional system of political patronage. When, in spite of his machinations at the aforementioned convention, the Republican nomination for President ultimately went to compromise candidate Garfield, Conkling accordingly found himself in something of a bind. Garfield was what at the time was known as a “Half-Breed,” being a member of the Republican Party who favored civil service reform and the creation of a merit-based appointment system. His default position within the party was therefore almost the opposite of that espoused by Senator Conkling. For a time, the New Yorker endeavored to rise above these differences, to the point of actively campaigning for Garfield in both his own home state and in the nominee’s native Ohio. But after Garfield won the resulting election and was inaugurated the following spring, Conkling learned that his attempts at conciliation had not bought him any favors.

    Not only did President Garfield proceed to nominate Senator James G. Blaine (1830-1893), Conkling’s greatest rival within the Republican Party, for the post of Secretary of State, but he also removed Edward Atkins Merritt (1838-1916) from the lucrative position as Collector of the Port of New York and replaced him with Blaine loyalist William H. Robertson (1823-1898). Given that this latter act was undertaken without the consultation of approval of either Conkling or his fellow New York Senator Thomas C. Platt (1833-1910) – in violation of both standing custom and Conkling’s own particular desire to preserve the Spoils System – Conkling took it upon himself to resign his seat in the Senate. Confident in his sway over the New York state legislature, he hoped to demonstrate to President Garfield not only the depth of his indignation but also the continued strength of his Stalwart faction and his control over the same. Accordingly, both Conkling and Platt – whom the former had convinced to follow along – resigned their seats in the Senate and submitted their reelection prospects to the New York state assembly. Unfortunately for these most stalwart of Stalwarts, however – and in spite of Conkling’s presence at the special session in Albany – the two had their respective candidacies rejected, with Warner Miller (1838-1918) and Elbridge Lapham (1814-1890) elected in their place. Granting that the circumstances of this whole affair were highly specific to a particular moment in the history of both the United States and the Republican Party, this would nonetheless seem to constitute a very interesting result. As a consequence of a dispute between the Senators of a given state and a President of the same party over an executive branch appointment, the legislature of the home state of those same two Senators evidently determined to punish the pair for their hubris. The members of the New York legislature might just as well have shrugged their shoulders at the whole thing, chalked it up as an argument at the federal level which had little to do with the prospects of the Empire State, and reaffirmed their support for Conkling and Platt. But in the end, they did not. Instead, despite the fact that Conkling was, in so many ways, their own creation, they seemingly chose to throw in their lot with the Garfield Administration and tossed the petulant former-Senator out on his ear. Only the power dynamic described in the original text of the United States Constitution could have given rise to such a situation or produced such a result.

    To be sure – and as aforementioned – these cases do not combine to make for the clearest possible object lesson. Indeed, one would be well-justified to look at these two incidents as little more than historical anecdotes that bear little upon the topic at hand. So what if a few Senators disobeyed their state assemblies in denying the office of Secretary of State to Roger Taney? And so what if the New York legislature ultimately declined to play along with Roscoe Conkling during the culmination of his feud with the Half-Breeds? And what has any of this got to do with the effect of the 17th Amendment on the Senate’s power to advise and consent to nominations? The answer, to put it simply, is that it’s got everything to do with it. Prior to the ratification of the 17th Amendment, these kinds of occurrences were always theoretically in the offing. And this is because the conversation surrounding the nomination of a given individual for a Cabinet post or a federal judgeship took place, not just between the President and the membership of the Senate – as it does now – but between the President, the Senate, and the membership of the state assemblies. Not only were any and all of the state legislatures well within their rights to provide explicit instructions to their respective Senators as to how they ought to vote on an upcoming nomination – with the implicit threat that disobedience would result in replacement – but even in the event that they declined to provide direction, they were perfectly free to punish Senators depending on how they voted.

    Usually, they didn’t bother with either. As noted above, members of the state assemblies tended not to concern themselves overmuch with the makeup of the Cabinet. But they always possessed the power to do so; to shape the use of the advice and consent power by way of disciplining their Senators. And there can be no doubt that, from time to time, they had an interest in doing so. The noted incidents connected to Taney and Conkling are arguably made most memorable by the personalities and the eras from which they sprung. Roger Taney was an arch-Jacksonian who played a key role in bringing about the demise of the 2nd Bank of the United States, a deed which was bound to arouse a passionate response in certain states. And Roscoe Conkling was a flamboyant, self-possessed, and often overbearing man whose approach to politics was bound to make as many enemies as it did friends. It would accordingly seem fair to say that, as sympathetic as many of his fellow New Yorkers doubtless were to his position on the question of patronage vs. reform, his arrogance and his hubris likely alienated some of those who might otherwise have supported him. But beyond these highly specific moment in which the actions of a certain individual could not help but provoke a response, the state assemblies did always have at least some reason to pay heed to executive nominations.

    In the case of nominations to the district courts and to the circuit courts, for example, the states definitely had an interest in who would be hearing the cases that were appealed from within their respective jurisdictions. And even when the nominee in question was standing for a spot on the Supreme Court, states sometimes still had something to gain based on whether the jurist was confirmed or rejected. Not only did Supreme Court Justices continue to possess substantial authority within the regional circuit courts until the passage of the Evarts Act in 1891, but the majority within a given state assembly might sometimes find itself in a position wherein it vehemently opposed the elevation of a particular judge. In 1893, by way of an example of the latter, Democratic Senator David B. Hill (1843-1910) was able to use his clout as the former governor of New York to escape the punishment of his home state’s legislature for engineering the defeat of the Supreme Court nominations of William B. Hornblower (1851-1914) and Wheeler Hazard Peckham (1833-1905). As these men had been nominated by Hill’s fellow Democrat – and fellow New Yorker – Grover Cleveland (1837-1908), one might assume that Hill would have had more reason that not to do everything in his power to see them smoothly confirmed. In actual fact, however, this did not prove to be the case.

    New York at that time was closely divided between the supporters of President Cleveland – who favored the gold standard and aimed to pursue further patronage reform – and those who aligned themselves behind Senator Hill – who favored the coining of silver as well as gold and was very much a creature of the Tammany Hall political machine. In the Presidential Election of 1892, New York tellingly ended up supporting its “favorite son” Cleveland by less than five percent of the total votes cast, and when the opportunity presented itself for the newly minted administration to fill a seat on the Supreme Court, the New York state assembly was still controlled by Hill’s supporters. The former-Governor-cum-Senator was therefore perfectly positioned to deny his rival his first two choices for the high court, forcing him to instead settle on Louisiana Democrat Edward Douglas White (1845-1921). Now, granting that Hill’s actions may well have been largely for sake of spite, it is nevertheless entirely possible that he was also motivated by principle. Having been a member of the New York legal scene since as far back as the 1860s, he may genuinely have felt from personal experience that the likes of Hornblower and Peckham were not suited to the Supreme Court, that they would have made bad law if elevated, and that the Empire State would have suffered as a result. Whatever his reasoning, however, one thing would seem to be clear: Hill’s presence in the Senate and his actions as a Senator would almost certainly not have been possible under the terms of the 17th Amendment. Indeed, the whole episode represents an intrusion of state politics into the federal arena.

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