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The Appointing Power of the Executive
To the People of the State of New York:
It has been observed in a former paper, that ``the true test of
a good government is its aptitude and tendency to produce a good
administration.'' If the justness of this observation be admitted,
the mode of appointing the officers of the United States contained
in the foregoing clauses, must, when examined, be allowed to be
entitled to particular commendation. It is not easy to conceive a
plan better calculated than this to promote a judicious choice of
men for filling the offices of the Union; and it will not need
proof, that on this point must essentially depend the character of
its administration.
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.
Those who have themselves reflected upon the subject, or who
have attended to the observations made in other parts of these
papers, in relation to the appointment of the President, will, I
presume, agree to the position, that there would always be great
probability of having the place supplied by a man of abilities, at
least respectable. Premising this, I proceed to lay it down as a
rule, that one man of discernment is better fitted to analyze and
estimate the peculiar qualities adapted to particular offices, than
a body of men of equal or perhaps even of superior discernment.
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.
The truth of the principles here advanced seems to have been
felt by the most intelligent of those who have found fault with the
provision made, in this respect, by the convention. They contend
that the President ought solely to have been authorized to make the
appointments under the federal government. But it is easy to show,
that every advantage to be expected from such an arrangement would,
in substance, be derived from the power of nomination, which is
proposed to be conferred upon him; while several disadvantages
which might attend the absolute power of appointment in the hands of
that officer would be avoided. In the act of nomination, his
judgment alone would be exercised; and as it would be his sole duty
to point out the man who, with the approbation of the Senate, should
fill an office, his responsibility would be as complete as if he
were to make the final appointment. There can, in this view, be no
difference 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.
The truth of the principles here advanced seems to have been
felt by the most intelligent of those who have found fault with the
provision made, in this respect, by the convention. They contend
that the President ought solely to have been authorized to make the
appointments under the federal government. But it is easy to show,
that every advantage to be expected from such an arrangement would,
in substance, be derived from the power of nomination, which is
proposed to be conferred upon him; while several disadvantages
which might attend the absolute power of appointment in the hands of
that officer would be avoided. In the act of nomination, his
judgment alone would be exercised; and as it would be his sole duty
to point out the man who, with the approbation of the Senate, should
fill an office, his responsibility would be as complete as if he
were to make the final appointment. There can, in this view, be no
difference between nominating and appointing. The same motives
which would influence a proper discharge of his duty in one case,
would exist in the other. And as no man could be appointed but on
his previous nomination, every man who might be appointed would be,
in fact, his choice.
But might not his nomination be overruled? I grant it might,
yet this could only be to make place for another nomination by
himself. The person ultimately appointed must be the object of his
preference, though perhaps not in the first degree. It is also not
very probable that his nomination would often be overruled. The
Senate could not be tempted, by the preference they might feel to
another, to reject the one proposed; because they could not assure
themselves, that the person they might wish would be brought forward
by a second or by any subsequent nomination. They could not even be
certain, that a future nomination would present a candidate in any
degree more acceptable to them; and as their dissent might cast a
kind of stigma upon the individual rejected, and might have the
appearance of a reflection upon the judgment of the chief
magistrate, it is not likely that their sanction would often be
refused, where there were not special and strong reasons for the
refusal.
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.
It will readily be comprehended, that a man who had himself the
sole disposition of offices, would be governed much more by his
private inclinations and interests, than when he was bound to submit
the propriety of his choice to the discussion and determination of a
different and independent body, and that body an entier branch of
the legislature. The possibility of rejection would be a strong
motive to care in proposing. The danger to his own reputation, and,
in the case of an elective magistrate, to his political existence,
from betraying a spirit of favoritism, or an unbecoming pursuit of
popularity, to the observation of a body whose opinion would have
great weight in forming that of the public, could not fail to
operate as a barrier to the one and to the other. He would be both
ashamed and afraid to bring forward, for the most distinguished or
lucrative stations, candidates who had no other merit than that of
coming from the same State to which he particularly belonged, or of
being in some way or other personally allied to him, or of
possessing the necessary insignificance and pliancy to render them
the obsequious instruments of his pleasure.
To this reasoning it has been objected that the President, by
the influence of the power of nomination, may secure the
complaisance of the Senate to his views. This supposition of
universal venalty in human nature is little less an error in
political reasoning, than the supposition of universal rectitude.
The institution of delegated power implies, that there is a portion
of virtue and honor among mankind, which may be a reasonable
foundation of confidence; and experience justifies the theory. It
has been found to exist in the most corrupt periods of the most
corrupt governments. The venalty of the British House of Commons
has been long a topic of accusation against that body, in the
country to which they belong as well as in this; and it cannot be
doubted that the charge is, to a considerable extent, well founded.
But it is as little to be doubted, that there is always a large
proportion of the body, which consists of independent and
public-spirited men, who have an influential weight in the councils
of the nation. Hence it is (the present reign not excepted) that
the sense of that body is often seen to control the inclinations of
the monarch, both with regard to men and to measures. Though it
might therefore be allowable to suppose that the Executive might
occasionally influence some individuals in the Senate, yet the
supposition, that he could in general purchase the integrity of the
whole body, would be forced and improbable. A man disposed to view
human nature as it is, without either flattering its virtues or
exaggerating its vices, will see sufficient ground of confidence in
the probity of the Senate, to rest satisfied, not only that it will
be impracticable to the Executive to corrupt or seduce a majority of
its members, but that the necessity of its co-operation, in the
business of appointments, will be a considerable and salutary
restraint upon the conduct of that magistrate. Nor is the integrity
of the Senate the only reliance. The Constitution has provided some
important guards against the danger of executive influence upon the
legislative body: it declares that ``No senator or representative
shall during the time for which he was elected, be appointed to any
civil office under the United States, which shall have been created,
or the emoluments whereof shall have been increased, during such
time; and no person, holding any office under the United States,
shall be a member of either house during his continuance in
office.''
Publius.
Hamilton From the New York Packet.
Tuesday, April 1, 1788.
THE President is ``to nominate, and, by and with the advice and
consent of the Senate, to appoint ambassadors, other public
ministers and consuls, judges of the Supreme Court, and all other
officers of the United States whose appointments are not otherwise
provided for in the Constitution. But the Congress may by law vest
the appointment of such inferior officers as they think proper, in
the President alone, or in the courts of law, or in the heads of
departments. The President shall have power to fill up all
vacancies which may happen during the recess of the senate, by
granting commissions which shall expire at the end of their next
session.''