Friday, May 20, 2005

Ann Althouse links to the debates in the Constitutional Convention to show that Madison originally supported saying that the president could appoint judges with only 1/3 concurrence from the Senate. (Link via Instapundit)

This is fascinating. And thank you to the University of Chicago for posting the full notes from the debates. If you read through the debate, you can see how all over the board the members of the Convention were about appointment powers. They apparently went back and forth between vesting the appointment power between the Executive or in the Senate. There were some who preferred that the Senate choose judges. They even, for a time, considered giving the Senate the power to negotiate treaties.
The Senate of the United States shall have Power to make Treaties; to send Ambassadors; and to appoint the Judges of the Supreme (national) Court.
It seems that we have Gouverneur Morris to thank for convincing them that the Senate should not have the power to appoint judges.
Mr Govr Morris argued agst. the appointment of officers by the Senate. He considered the body as too numerous for the purpose; as subject to cabal; and as devoid of responsibility.--If Judges were to be tried by the Senate according to a late report of a Committee it was particularly wrong to let the Senate have the filling of vacancies which its own decrees were to create.

Clearly, it is an improvement that they eventually placed these powers in the Executive branch. Can you imagine having the Senate negotiating treaties or choosing judges? If you think that we have interest groups going wild now, just picture what they would do if they could lobby particular senators about provisions for treaties or for individual judicial nominations.

The relevance for the debate today, is that, if the power of judicial nominations had been given to the Senate as was discussed, it doesn't seem that there was any requirement for a supermajority to approve the nominations. So, we could have had a situation where whichever party held the majority could have put their candidates through. There wouldn't even be a check between the Executive and Legislative branches there.

Read through the notes. It will remind you of many a committee meeting you've sat in where the eventual result is 180 degrees different from the original proposal. Would that my committees did as thoughtful a job as the Founders did.