The Anti-Federalist Papers

The Constitutional Convention Debates

Appointment of Judges (JULY 21)

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MR. MADISON

stated as his reasons for the motion.

1. that it secured the responsibility of the Executive who would in general be more capable and likely to select fit characters than the Legislature, or even the second branch of it, who might hide their selfish motives under the number concerned in the appointment-
2. that in case of any flagrant partiality or error, in the nomination it might be fairly presumed that two thirds of the second branch would join in putting a negative on it
3. that as the second branch was very differently constituted when the appointment of the Judges was formerly referred to it, and was now to be composed of equal votes from all the States, the principle of compromise which had prevailed in other instances required in this that there should be a concurrence of two authorities, in one of which the people, in the other the States, should be represented.

The Executive Magistrate would be considered as a national officer, acting for and equally sympathising with every part of the United States. If the second branch alone should have this power, the Judges might be appointed by a minority, of the people, though by a majority, of the States, which could not be justified on any principle as their proceedings were to relate to the people, rather than to the States, and as it would moreover throw the appointments entirely into the hands of the Northern States, a perpetual ground of jealousy and discontent would be furnished to the Southern States.

MR. PINCKNEY

was for placing the appointment in the second branch exclusively. The Executive will possess neither the requisite knowledge of characters, nor confidence of the people for so high a trust.

MR. RANDOLPH

would have preferred the mode of appointmentproposed formerly by Mr. Gorham, as adopted in the Constitution of Massachusetts but thought the motion depending so great an improvement of the clause as it stands, that he anxiously wished it success. He laid great stress on the responsibility of the Executive as a security for fit appointments. Appointments by the Legislatures have generally resulted from cabal, from personal regard, or some other consideration than a title derived from the proper qualifications. The sarne inconveniencies will proportionally prevail, if the appointments be referred to either branch of the Legislature or to any other authority administered by a number of individuals.

MR. ELLSWORTH:

would prefer a negative in the Executive on a nomination by the second branch, the negative to be overruled by a concurrence of two thirds of the second branch to the mode proposed by the motion, but preferred an absolute appointment by the second branch to either. The Executive will be regarded by the people with a jealous eye. Every power for augmenting unnecessarily his influence will be disliked. As he will be stationary it was not to be supposed he could have a better knowledge of characters. He will be more open to caresses and intrigues than the Senate. The right to supersede his nomination will be ideal only. A nomination under such circumstances will be equivalent to an appointment.

MR. GOUVERNEUR MORRIS

supported the motion.

1. The States in their corporate capacity will frequently have an interest staked on the determination of the Judges. As in the Senate the States are to vote the Judges ought not to be appointed by the Senate. Next to the impropriety of being Judge in one`s own cause, is the appointment of the Judge.
2. It had been said the Executive would be uninformed of characters. The reverse was the truth. The Senate will be so. They must take the character of candidates from the flattering pictures drawn by their friends. The Executive in the necessary intercourse with every part of the United States required by the nature of his administration, will or may have the best possible information.
3. It had been said that a jealousy would be entertained of the Executive. If the Executive can be safely trusted with the command of the army, there cannot surely be any reasonable ground of Jealousy in the present case.

He added that if the objections against an appointment of the Executive by the Legislature, had the weight that had been allowed there must be some weight in the objection to an apointment of the Judges by the Legislature or by any part of it.

MR. GERRY

The appointment of the Judges like every other part of the Constitution should be so modelled as to give satisfaction both to the people and to the States. The mode under consideration will give satisfaction to neither. He could not conceive that the Executive could be as well informed of characters through out the Union, as the Senate. It appeared to him also a strong objection that two thirds of the Senate were required to reject a nomination of the Executive. The Senate would be constituted in the same manner as Congress. And the appointments of Congress have been generally good.

MR. MADISON

observed that he was not anxious that two thirds should be necessary to disagree to a wmination. He had given this form to his motion chiefly to vary it the more clearly from one which had just been rejected. He was content to obviate the objection last made, and accordingly so varied the motion as to let a majority reject.

COLONEL MASON

found it his duty to differ from his colleagues in their opinions and reasonings on this subject. Notwithstanding the form of the proposition by which the appointment seemed to be divided between the Executive and Senate, the appointment was substantially vested in the former alone. The false complaisance which usually prevails in such cases will prevent a disagreement to the first nominations. He considered the appointment by the Executive as a dangerous prerogative. It might even give him an influence over the Judiciary department itself. He did not think the difference of interest between the Northern and Southern States could be properly brought into this argument. It would operate and require some precautions in the case of regulating navigation, commerce and imposts, but he could not see that it had any connection with the Judiciary department.