Federalist #76

The Appointing Power of the Executive  (Hamilton)

The president has the power to nominate and, with the advice and consent of the Senate, to appoint ambassadors, other public ministers, judges of the Supreme Court, and all other officers of the United States was appointments or not otherwise provided for in the Constitution. Congress may by law give the appointments of inferior officers as they think appropriate to the president alone, or in the courts of law, or in the heads of departments. The president has the power to fill vacancies which happen during the recess of the Senate by granting commissions which shall expire at the end of the next session.

The true test of good government is that attitude and tendency to produce good administration. It is not easy to come up with a better plan than this to promote a judicious choice of men for filling the offices of the union, and it will not need proof that this point essentially depends on the character of its administration. The power of appointment in ordinary cases can be properly modified in only one of three ways. It should be vested in a single man, in the select assembly of a moderate number, or in a single man with the concurrence of such an assembly. Giving this power to a large number of people is impractical because it would leave them little time to do anything else. 

Giving the power of appointment to one man will naturally make them have a livelier sense of duty and a more exact regard for his reputation. He will feel strongly obligated and more interested to investigate with care the qualities of the people he appoints to fill the positions. He will be less likely to have personal attachments to those he chooses. He will also be less liable to be influenced by friendship. Personal considerations innominees are dangerous because it agitates the passions of men. In any appointment process, we are likely to see a full display of all the private and party likes and dislikes of those who compose the assembly. It will be a victory for one party or the other or compromise between the parties. In either case, the merits of the nominee will be put on the back burner. In the first case, the qualifications that meet the goals of the party will be more important than those of the potential nominee. In the last, the coalition will commonly turn upon some interested equivalent.

Critics contend the president ought to have sole power to make appointments. However, it is easy to show the advantages of the arrangement the Constitution calls for. In the  act of nomination, it is his judgment alone that would be exercised. In this case there would be no difference between appointing and nominating. If the president just has the power to nominate someone his nomination may be overruled. However, it is not likely that the Senate will often refuse nominees without special and strong reasons for refusal. 

To what purpose would the cooperation of the Senate be useful? Hamilton says their concurrence would have a powerful, though in general, silent operation. It is a check upon the favoritism of the president. In addition, it would help prevent the appointment of unfit nominees based on state prejudice, family connection, personal attachment, or popularity. It will also provide a source of stability in the administration. 

It is easy to comprehend that any man who had the sole disposition of nominating persons to offices would be governed much more by his private inclination and interest then someone who is bound to submit the propriety of their choices to the discussion and determination of a different and independent body. The risk of rejection would force him to carefully choose nominees. The danger to his own reputation and political existence would keep him from showing us his favoritism or pursuing a popular choice to the observation of a body whose opinion determines whether the person gets the job or not.  He would be ashamed and afraid to bring forth candidates who have no other merit than that of coming from the same states to which he belongs or who are merely instruments to please the president.

Critics have said that the president, through the power of nomination, may get be Senate to comply with his views. The executive might occasionally influence certain members of the Senate but it is  improbable to think that he could influence the whole body. The country can rest satisfied that it will be impractical for the executive to corrupt a majority of the members of the Senate, but the necessity of its cooperation with the executive in the business of appointments will be a considerable restraint upon the conduct of the executive. The Constitution has provided some important guards against the danger of executive influence upon the legislature. It declares that no senator or representative during the time for which he was elected be appointed to any civil office under the United States, which shall have been created. No person holding any office of the United States may be a member of either house during his time in office.

Federalist #65

The Powers of the Senate (cont.)  (Hamilton)

  

Hamilton discusses the remaining powers of the Senate.  In particular, he broaches the idea of the Senate as the “court for the trail of impeachments.”  The people tried before the Senate would be those whom violated “public trust…immediately to the society itself.”  Hamilton realizes an impeachment court would be hard to form in a branch that is “wholly elective” because there is the danger “that the decision will be regulated more by comparative strength of parties then by real demonstrations of innocence or guilt.”  However, Hamilton states even though there may be problems, the “…convention….thought the Senate the most fit depository of this important trust.”  Hamilton continues in the following paragraph to describe why the Senate is the best fit for the job of impeachment.  He then ponders, which other body if not the Senate, could be the operators of the impeachment process?

The Supreme Court is the next body Hamilton analyzes as an arbitrator of impeachments.  He explains that it is “much to be doubted whether the members of that tribunal would…be endowed with so eminent a position of fortitude called for in the execution of so difficult a task.”  He also believes the justices would not “possess the degree and authority” needed to carry out the impeachment trials.  If the Supreme Court did not possess these two attributes, Hamilton argues this would pose a danger to “the accused” and “public tranquility.”  Hamilton also lists other factors that would make the Supreme Court an inept decision maker in impeachment trials.  First, there is a necessity for a “numerous court.”  Second, there will be “no jury to stand between the judges who are to pronounce the sentence of the law and the party who is to receive or suffer it.”  These factors alone, in Hamilton’s point of view, are enough to deem the Supreme Court “an improper substitute for the Senate” in regards to fair and balanced impeachment ability.

 
Hamilton next considers combining the Supreme Court and the Senate to handle the demands of the impeachment process.  He concurs that there would be a few advantages to the combined body.  However, Hamilton stresses the cons would definitely outweigh the pros in this situation.  Mostly, Hamilton fears the “double prosecution to which the offender would be liable.”  Next, Hamilton proposes a panel of “persons wholly distinct from the other departments of government.”  Hamilton argues this would “increase the complexity of the political machine…add to a new spring to the government…be attributed with a heavy expense…and be subject to a variety of casualties and inconveniences.”  In closing, Hamilton suggests that, even if the measures listed above are not desirable, the Constitution should not be rejected.  He continues that is “mankind were to resolve to agree on an institution of government until every part of it had been adjusted to the most exact standard of perfection, society would soon become a general scene of anarchy.”