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.
It seems that stability was the overarching theme of the federalists, as they were both concerned with ensuring the rights of man as well as long-term viability of the government. TO do this, the system of checks and balances (even here at the presidential appointment level) is required. This would both serve to ensure the president has who he feels is best for the government department, but it allows the legislative branch to ensure it is not political pay back and that the position is well served. Of course, this pre-dates President Andrew Jackson.
ReplyDeleteComment by Harold Nash:
ReplyDeleteIn Federalist #78, Hamilton addresses "The Judiciary Department" and at one point he emphasizes that judges are to hold their office during good behavior. He goes on to speak of good behavior as a prerequisite for continuation of judicial service and says that such a standard "is certainly one of the most valuable of the modern improvements in the practice of government." He later adds that "there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges…(and) the number must be still smaller of those who unite the requisite integrity with the requisite knowledge." As the highest court of the land - then and now - one must assume that Supreme Court justices would be held to the absolute highest standards of complete "integrity" and irreproachably good comportment.
There is nothing here out of the ordinary. This is pretty much what one would expect Hamilton to have said. What was out of the ordinary, however, was the actual conduct of some of the earliest Supreme Court justices. One of these was John Rutledge of South Carolina. In 1791, Rutledge had resigned as a Supreme Court justice to return to the court in South Carolina. In 1795, Rutledge reconsidered and President George Washington again nominated him for a Court position. This time, however, he was rejected by the Senate and a few weeks later Rutledge tried to drown himself off the Charleston shore.
James Wilson was considered exceedingly distinguished and was one of only six men to have signed both the Declaration of Independence and the Constitution. Wilson later became a Supreme Court justice. But he was also a real estate speculator and in 1796 defaulted on a number of outstanding loans. Shortly thereafter he was thrown in prison and became the first - and only - Supreme Court justice to be jailed.
Today, our Senate interrogations of Supreme Court nominees are grossly political, highly contentious, and oftentimes downright vicious. One would have to concede, though - despite their many obvious flaws - that a nominee with any history at all that suggested behavioral impropriety or absence of integrity or mental imbalance or financial shenanigans would swiftly and loudly be given the axe by the Senate henchmen. Perhaps it still isn't a perfect review system and it does come in for a lot of well deserved criticism, but a good argument can be put forth that Hamilton's judicial qualifications ideals are much closer to realization today than they ever were in his time.