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

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

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

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

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

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

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

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

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

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

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