On Judicial Nominees, Federalist Paper #76

 

Introduction

I would like to share with you some insight on the issue of Presidential nominations, "with the advice and consent of the Senate." This is from Federalist Paper #76.

 

Brief Analysis

• The nominated person should be the President's choice.

In fact, many people of the time wanted the President to be able to put into office whomever he wanted, without the need for confirmation by the Senate.

 

• The purpose of the "consent of the Senate" is to prevent favoritism.

Basically, "favoritism" on this issue means putting someone in office because you like him, even though he may not be qualified for the job. People who fall into this category might include: relatives, friends of the family, and people who gave you money.

 

• Hamilton believes that the Senate would RARELY reject a nominee.

According to Hamilton, it makes no sense for the Senate to reject someone nominated by the President, unless there is very, very good reason.

 

Hamilton's words in Federalist #76 - Overview

Now we get to some quotes from Federalist Paper #76, written by Hamilton.

Note that Hamilton can sometimes be a bit wordy, and he uses lofty phrases.

In the quotes below, I will sometimes simplify his wordy phrases. You will know my words from Hamilton's because I put my phrasing in brackets.

As an example of Hamiltonian phrasing, here is a sentence written by Hamilton, in full: "Humanity and good policy conspire to dictate that the benign prerogative of pardoning should be as little as possible fettered or embarrassed."

Was that clear?

I think we could clarify his point. I would simplify the sentence to something like: "[The prerogative of pardoning should be hindered as little as possible.]"

Thus, we keep Hamilton's point, but make it more readable.

Now to some quotes....

 

Regarding the President's choice

• "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."

"A single well directed man cannot be distracted and warped by that diversity of views, feelings, and interests, which frequently distract and warp the resolutions of a collective body."

"In the act of nomination, [the President's] judgment alone would be exercised. And as it would be his sole duty to point out the man, the President's responsibility would be as complete as if he were to make the final appointment."

 

On the President's nomination being overruled

"But might not his nomination be overruled? I grant it might, yet this could only be to make place for another nomination. The person ultimately appointed must be the object of [the President's] preference, though perhaps not [the President's first choice.]"

"It is also not very probable that the President's nomination would often be overruled."

"The Senate could not be tempted to [reject a nominee in favor of a potential nominee the Senate might prefer] because the Senate could not assure themselves that [the person they wish to be nominated really would be nominated.]"

"The Senate could not even be certain that a future nomination would present a candidate in any degree more acceptable to them."

"And, their dissent might cast a kind of stigma upon the individual rejected."

"[The Senate's dissent might also appear to be a negative opinion of the President's judgment.]"

"[Therefore], it is not likely that [the Senate would refuse to approve a nominee, unless there were] special and strong reasons for the refusal."

 

On the issue of rejecting a nominee

"To what purpose then require the co-operation of the Senate? It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to preventing the appointment of unfit characters.

[Such favoritism and unfit characters might come from: a candidate being from his own state], from family connection, from personal attachment, or from a view to [attain] popularity."

"The danger to his own reputation, and to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity...could not fail to operate as a barrier."

"[The President] would be both ashamed and afraid to bring forward, for the most distinguished of stations, candidates who had no other merit than that of coming from the same State to which he belonged, or of being in some way personally allied to him."

"[Nor would the President nominate a person who has such little power or money, or who has such a sycophantic character, that the candidate may become] the obsequious instrument of [the President's] pleasure."

 

On the President influencing the Senate

"Though it might be allowable to suppose that the executive might occasionally influence some individuals in the Senate, the supposition that he could in general purchase the integrity of the whole body would be forced and improbable."

 

Compiled January 2006

M. Fennell