The Federalist

Despite the authoritative tone I often use, I am no expert on American history. I am not even a particularly well informed dilettante. I’m just someone who's been reading a book and formed a few thoughts about it.

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His brow was of the sort phrenologically associated with more than average intellect; silken jet curls partly clustering over it, making a foil to the pallor below, a pallor tinged with a faint shade of amber akin to the hue of time-tinted marbles of old. This complexion, singularly contrasting with the red or deeply bronzed visages of the sailors, and in part the result of his official seclusion from the sunlight, tho' it was not exactly displeasing, nevertheless seemed to hint of something defective or abnormal in the constitution and blood.

Tuesday, January 17, 2006

An overly long reply

Solomon Grundy posed the following question below:

A sincere question: If the three branches of government "should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others," then why does the executive branch nominate members of the judicial branch? The framers of the constitution had so much confidence in the wisdom of the elitist Senate that the Senate would seem to be a a more natural choice of nominator (with the House confirming and the president having a veto). Doesn't that seem more consistent with the rest of the structure of the government?

Having 100 people of at least two parties coming to consensus upon a nominee seems less prone to corruption than one potential tyrant choosing his own overseer.

I simply don't know how or why they decided the president should nominate justices. Do you?


First of all, I probably should have quoted the relevant paragraph from Federalist 51 in full.

In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. Were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another. Perhaps such a plan of constructing the several departments would be less difficult in practice than it may in contemplation appear. Some difficulties, however, and some additional expense would attend the execution of it. Some deviations, therefore, from the principle must be admitted. In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them.


Ok, as to the specific question: why should the President nominate judges and not the Senate? The first part of the answer is in Federalist 78:

The manner of constituting it seems to embrace these several objects: 1st. The mode of appointing the judges. 2d. The tenure by which they are to hold their places. 3d. The partition of the judiciary authority between different courts, and their relations to each other.

First. As to the mode of appointing the judges; this is the same with that of appointing the officers of the Union in general, and has been so fully discussed in the two last numbers, that nothing can be said here which would not be useless repetition.


In other words, the Framers saw the appointment of judges as not significantly different from the appointment of all other officers of government, like, say, the Secretary of State. So what did they have to say about the appointment of those officers of government? From Federalist 76 (Hamilton):


It will be agreed on all hands, that the power of appointment, in ordinary cases, ought to be modified in one of three ways. It ought either to be vested in a single man, or in a SELECT assembly of a moderate number; or in a single man, with the concurrence of such an assembly. The exercise of it by the people at large will be readily admitted to be impracticable; as waiving every other consideration, it would leave them little time to do anything else. When, therefore, mention is made in the subsequent reasonings of an assembly or body of men, what is said must be understood to relate to a select body or assembly, of the description already given. The people collectively, from their number and from their dispersed situation, cannot be regulated in their movements by that systematic spirit of cabal and intrigue, which will be urged as the chief objections to reposing the power in question in a body of men.

The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. He will, on this account, feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them. He will have FEWER personal attachments to gratify, than a body of men who may each be supposed to have an equal number; and will be so much the less liable to be misled by the sentiments of friendship and of affection. A single well-directed man, by a single understanding, cannot be distracted and warped by that diversity of views, feelings, and interests, which frequently distract and warp the resolutions of a collective body. There is nothing so apt to agitate the passions of mankind as personal considerations whether they relate to ourselves or to others, who are to be the objects of our choice or preference. Hence, in every exercise of the power of appointing to offices, by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly. The choice which may at any time happen to be made under such circumstances, will of course be the result either of a victory gained by one party over the other, or of a compromise between the parties. In either case, the intrinsic merit of the candidate will be too often out of sight. In the first, the qualifications best adapted to uniting the suffrages of the party, will be more considered than those which fit the person for the station. In the last, the coalition will commonly turn upon some interested equivalent: "Give us the man we wish for this office, and you shall have the one you wish for that.'' This will be the usual condition of the bargain. And it will rarely happen that the advancement of the public service will be the primary object either of party victories or of party negotiations.


In other words, when SG says:


Having 100 people of at least two parties coming to consensus upon a nominee seems less prone to corruption than one potential tyrant choosing his own overseer.


Hamilton would disagree pretty strongly, and it’s hard to argue with him that in practice appointments in the Senate would not quickly devolve into horse-trading.

Federalist 76 is also interesting in that it includes this nugget of relevance:

To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.


I mean, sort of, if the nomination is high-profile enough (e.g., Harriet Miers). But clearly not in less visible cases (e.g., Michael “Heckuva Job” Brown).

2 Comments:

Blogger Solomon Grundy said...

Hey, I knew you were just the man to ask.

The answer makes sense, and it seems to turn on a couple things. For one, that nominating one's own overseer is essentially the same as nominating various officials. This to me seems plain wrong (it just seems like nominating your own check and balance is different in kind from nominating someone in your own branch of government).

For another, it seems to turn on the following (contentious) opinion:

The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. He will, on this account, feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them. He will have FEWER personal attachments to gratify, than a body of men who may each be supposed to have an equal number ... A single well-directed man, by a single understanding, cannot be distracted and warped by that diversity of views, feelings, and interests, which frequently distract and warp the resolutions of a collective body.

Will it really "naturally beget a livelier sense of duty"? That seems contrary to their other, low opinions of the corruptibility of human nature, and of the temptations of tyranny. It also seems to just ignore the opposite opinion, that the process of coming to consensus mitigates the "warping interests" of individuals. That opposite view of human nature seems more consistent with the rest of our system of government.

However, I agree with their thought experiment about congressional horse-trading. So it seems to come down to: Which is worse, the pitfalls of an executive nominating his own overseer (pitfalls that we are currently living through), or the pitfalls of an assembly of elected officials doing the nominating. It would seem (judging by your extracts) that Hamilton et al. conveniently ignored discussing the pitfalls associated with the executive. They might have made the right decision, but they seem to have glossed over the alternative.

I think what they wrote makes sense when nominating secretaries, etc., but perhaps not when nominating Supreme Court justices, which to me seems like a special case. At the very least it would have been good if they had discussed the alternatives.

1:29 PM  
Blogger Antid Oto said...

They seemed to see the main insulation of the judiciary as the fact that its appointments were for as long as judges exhibited good behavior (that is to say, lifetime appointments barring bad behavior and impeachment). That creates a time-lag effect that makes it extremely difficult for any one President to fully corrupt the judiciary personally (ideologically is a different story). Hamilton writes about this in of Federalist 78:

the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power1; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers.'' And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as
nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security."

As to the second thing, Hamilton isn't claiming that one man will always have a lively sense of duty and an exact regard to reputation, just that one man is more likely to have those things than a group of people. If Hamilton and Madison had little regard for human nature in individuals, they had even less for human nature in groups.

I'm not saying you're wrong to be suspicious of their reasoning, I'm just trying to present it as fully as possible.

1:48 PM  

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