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.
No comments:
Post a Comment