Posted on 07/02/2005 11:48:50 AM PDT by STARWISE
In light of the current Supreme Court vacancy to be filled and those upcoming, and since the words "advice/advise and consent" are being bandied about with veiled and blatant threats by the Democrats, the Founder's actual deliberations and decisions on this subject need to be recalled and re-stated.
The Senate is Supposed to Advise and Consent, Not Obstruct and Delay
I. The Framers of the Constitution Assigned to the President the Pre-Eminent Role in Appointing Judges.
A. The President Alone Has The Power to Nominate
Article II of the Constitution provides that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint...Judges of the supreme Court [and such inferior courts as the Congress may from time to time ordain and establish]."4 As the text of the provision makes explicitly clear, the power to choose nominees — to "nominate" — is vested solely in the President,5 and the President also has the primary role to "appoint," albeit with the advice and consent of the Senate. The text of the clause itself thus demonstrates that the role envisioned for the Senate was a much more limited one that is currently being claimed.
The lengthy debates over the clause in the Constitutional Convention support this reading. According to Madison's notes, an initial proposal on July 18, 1787, to place the appointment power in the Senate was opposed because, as Massachusetts delegate Nathaniel Ghorum noted, "even that branch [was] too numerous, and too little personally responsible, to ensure a good choice."6
Ghorum suggested instead that Judges be appointed by the President with the advice and consent of the Senate, as had long been the method successfully followed in his home state. James Wilson and Governeur Morris of Pennsylvania, two of the Convention's leading figures, agreed with Ghorum and moved that judges be appointed by the President.
In contrast, Luther Martin of Maryland and Roger Sherman of Connecticut argued in favor of the initial proposal, contending that the Senate should have the power because, "[b]eing taken fro[m] all the States it [would] be best informed of the characters & most capable of making a fit choice."7 And Virginia's George Mason argued that the President should not have the power to appoint judges because (among other reasons) the President "would insensibly form local & personal attachments...that would deprive equal merit elsewhere, of an equal chance of promotion."8
Ghorum replied to Mason's objection by noting that the Senators were at least equally likely to "form their attachments."9 Giving the power to the President would at least mean that he "will be responsible in point of character at least" for his choices, and would therefore "be careful to look through all the States for proper characters."
For him, the problem with placing the appointment power in the Senate was that "Public bodies feel no personal responsibility, and give full play to intrigue & cabal,"10 while if the appointment power were given to the President alone, "the Executive would certainly be more answerable for a good appointment, as the whole blame of a bad one would fall on him alone."11
Seeking a compromise, James Madison suggested that the power of appointment be given to the President with the Senate able to veto that choice by a 2/3 vote.12 Another compromise was suggested by Edmund Randolph, who "thought the advantage of personal responsibility might be gained in the Senate by requiring the respective votes of the members to be entered on the Journal."13 These compromises were defeated, however, and the vote on Ghorum's motion — that the President nominate and with the advice and consent of the Senate, should appoint — resulted in a 4-4 tie.14 The discussion was then postponed.
When the appointment power was taken up again on July 21, the delegates returned to their previous arguments. One side argued that the President should be solely responsible for the appointments, because he would be less likely to be swayed by "partisanship" — what Madison's generation called "faction"15 — than the Senate. The other side opposed vesting the appointment power in the President for a similar reason: he would not know as many qualified candidates as the Senate would, and might still be swayed by personal considerations or nepotism.
The convention delegates were primarily concerned about improper influence in the appointments process, and most of the debate centered on whether assigning the appointment power to the President or to the Senate would serve as a better check on that influence. Those who, like Madison, argued that the President should have the sole power of appointment believed that this procedure would best prevent such political bargaining.
As Edmund Randolph noted, "[a]ppointments by the Legislatures have generally resulted from cabal, from personal regard, or some other consideration than a title derived from the proper qualifications."16 But those who opposed this idea, and instead wanted the Senate to have the power of appointment, did not argue that the Senate should have the power in order to control the development of case law or regulate judicial philosophy. Instead, they feared that the President would be "more susceptible to caresses & intrigues than the Senate," as Oliver Ellsworth of Connecticut contended.17
In the end, the Convention agreed that the President would make the nominations, and the Senate would have a limited power to withhold confirmation as a check against political patronage or nepotism. Governeur Morris put the decision succinctly: "as the President was to nominate, there would be responsibility, and as the Senate was to concur, there would be security."18
As the Supreme Court subsequently recognized, "the Framers anticipated that the President would be less vulnerable to interest — group pressure and personal favoritism than would a collective body."19
No one argued that the Senate's participation in the process should include second-guessing the judicial philosophy of the President's nominees or attempting to mold that philosophy itself. Indeed, such a suggestion was routinely rejected as presenting a dangerous violation of the separation of powers, by allowing the Senate to control the President's choices and, ultimately, intrude upon the judiciary itself.
(snip)
B. The Framers Envisioned A Narrow Role for The Senate in The Confirmation Process.
Of course, there is more to the appointment power than the power to nominate, and the Senate unquestionably has a role to play in the confirmation phase of the appointment process. But the role envisioned by the framers was as a check on improper appointments by the President, one that would not undermine the President's ultimate responsibility for the appointments he made.
As James Iredell — later a Justice of the Supreme Court himself — noted during the North Carolina Ratification Convention, "[a]s to offices, the Senate has no other influence but a restraint on improper appointments.... This, in effect, is but a restriction on the President."27
The degree to which the founders viewed the power of appointment as being vested solely in the President can be gauged by the fact that John Adams objected even to the Senate's limited confirmation role, contending that it "lessens the responsibility of the president." To Adams, the President should be solely responsible for his choices, and should alone pay the price for choosing unfit nominees.
Under the current system, Adams complained, "Who can censure [the President] without censuring the senate...?"28 The appointment power is, Adams wrote, an "executive matter[]," which should be left entirely to "the management of the executive."29 James Wilson echoed this view: "The person who nominates or makes appointments to offices, should be known. His own office, his own character, his own fortune, should be responsible. He should be alike unfettered and unsheltered by counsellors."30
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Constitutional Bump.
This should be posted at least once per week for the next three and a half years. Good job!
Thank you very much.
bump
I have read about congress' responsibility to "Advise and Consent" Is it written anywhere that they have the right to "Dissent"? If they are given the right to Advise and Consent doesn't that mean that they get to voice their opinion and then agree?
Their "agreement" or not is the up/down vote on the nominee, not the selection thereof.
They would also have the right to withhold their Consent.
From the text of the article, it is clear that the Founding Fathers intended the Senate's role was as a check on the President -- in the event he appointed an "unqualified" or "unworthy" candidate.
The Democrats have expanded that role to include "politically unacceptable"...
My point is that the responsibility is called "Advise and Consent" not "Advise and Consent or Dissent". Do they actually have the right to say "No" or are they obligated to Consent?
yea well we kept a lot of libs off the bench who were qualified but way out there. So it works both ways, and frankly it might be better with moderate judges on both sides- that way no ones ideology gets in the way and we get fair and good decisions, not excessive ones on either side of the law.
I should do my own research perhaps, but is that stated literally?
How about we get judges who a.) can read the Constitution and b.) follow it?
There is no role for "moderate" judges. The Constitution either means what it says...or it does not.
Indeed, the quotes in the text of the article presuppose that the Senate could refuse their Consent on a given appointee.
Of course before 1913 Senators were appointed by state legislatures and represented the state governments.
Now we have 100 demagogues pandering to the mobs and trying to ingratiate themselves to big money interests.
It's also interesting to note that Madison's journal on the framing of the Constitution recalls several discussions on the timeframe of when the Legislative Branch should provide consent... most of the discussion revolved around "days"... not months, and there was even discussion that the President's nominee will become confirmed if the Legislature didn't act within a certain amount of days.
Perhaps the states should take back their original authority and initiate a repeal of the 17th amendment....
I like that clause.
Yes, the 17th Amendment should be repealed.
However, we are relentlessly going in the other direction toward ending the American Republic. We are being smoothly transitioned into global government where we will be in the Americas Administrative Region. The Europeans will be in the European Region, Africans in the African Region, etc.
The American Republic died in 1861, and the coffin was nailed shut in 1913 with the 17th Amendment, the income tax, and the creation of the Federal Reserve Bank.
Answer
Advise: Stand up on your soap box and state your opinion
Consent: Vote up or down.
The framers did not state choice and filibuster.
It's time to kill the filibuster. Those Republican worrywarts who think that the filibuster will serve them well when they become the minority are smoking crack. Ginsburg was appointed in August 1993 with an approval of 96 to 3 vote. She was affirmed with 54 of 54 democrats and 42 of 45 Republicans. Where is the Republican obstruction for an appointment who headed the American Communist Legal Union? The filibuster is a tactic enjoyed only by the left. Get rid of it.
Thanks for the post. It's really good.
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