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    The Recess Appointments Clause

    SCOTUSource Report

    The mission of The Constitutional Sources Project is to increaseunderstanding, facilitate research, and encourage discussion of the UnitedStates Constitution by connecting individualsincluding students, teachers,lawyers, and judgeswith the documentary history of its creation,

    ratification, and amendment.

    This research report was prepared by Harvard Law School SCOTUSourceFellow Christina Lee (JD14), Georgetown Law Student and ConSourceSummer Research Fellow, Laura Livingston, ConSource staff members, andCarl Cecere, a Texas-based appellate attorney and member of the ConSourceLegal Advisory Board.

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    The Presidents Authority Under the Appointments Clause (Article II, Sec. 2)

    Citation: U.S. CONST. art. II, 2, cl. 2,available athttp://consource.org/document/united-states-constitution/.

    Quote: [The President] shall nominate, and, by and with the Advice and Consent of

    the Senate, shall appoint Ambassadors, other public Ministers and Consuls,Judges of the supreme Court, and all other Officers of the United States,whose Appointments are not herein otherwise provided for, and which shallbe established by Law: but the Congress may by Law vest the Appointmentof such inferior Officers, as they think proper, in the President alone, in theCourts of Law, or in the Heads of Departments.

    a. British Parliamentary Practice

    Citation: THE FEDERALIST NO. 69 (Alexander Hamilton), available athttp://consource.org/document/the-federalist-no-69-1788-3-14/#50fe46c7fbed7d7227b9b8fc.

    Background: In this Federalist paper, Alexander Hamilton compares the role of thePresident in the Appointments Clause to the role of the King in theappointments process in Great Britain. While the British King wasempowered to appoint all officers and unilaterally create new offices, theConstitution limits the Presidents appointment power by requiring theadvice and consent of the Senate.

    Quote: The President is to nominate and with the advice and consent of the Senateto appoint Ambassadors and other public Ministers, Judges of the SupremeCourt, and in general all officers of the United States established by law andwhose appointments are not otherwise provided for by the Constitution. TheKing of Great-Britain is emphatically and truly stiled [sic] the fountain ofhonor. He not only appoints to all offices, but can create offices. He canconfer titles of nobility at pleasure; and has the disposal of an immensenumber of church preferments [sic]. There is evidently a great inferiority, inthe power of The President in this particular, to that of the British King

    ~~~

    b. State Constitutions Pre-Dating the Federal Constitution

    1. MarylandCitation: MD.CONST.of1776, art. XLVIII, available at

    http://consource.org/document/constitution-of-maryland-1776-11-11/.

    Background: The Maryland Constitution of 1776 provided for a bicameral legislature, theGeneral Assembly, which had power to choose both the Governor and theCouncil to the Governor. The legislature held most of the state governmentspower, but the Governor, with the advice and consent of his Council

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    (chosen by the legislature), could appoint certain state officials. Here, thestates constitution explains the Governors appointment powers.

    Quote: XLVIII: That the Governor, for the time being, with the advice and consentof the Council, may appoint the Chancellor, and all Judges and Justices, theAttorney-General, Naval Officers, officers in the regular land and sea service,

    officers of the militia, Registers of the Land Office, Surveyors, and all othercivil officers of government (Assessors, Constables, and Overseers of theroads only excepted) and may also suspend or remove any civil officer whohas not a commission, during good behaviour [sic]; and may suspend anymilitia officer, for one month: and may also suspend or remove any regularofficer in the land or sea service: and the Governor may remove or suspendany militia officer, in pursuance of the judgment of a Court Martial.

    ~~~

    2. MassachusettsCitation: MASS.CONST. of1780, art.IX, available at

    http://consource.org/document/constitution-of-massachusetts-1780-10-25/.

    Background: Under the states 1780 Constitution, Massachusetts executive branch wascomposed of a Governor, the supreme executive magistrate, and his nine-member council. The governor, along with the advice and consent of anexecutive council, was empowered to make most appointments.

    Quote: Art. IX. All judicial officers, the attorney-general, the solicitor-general, allsheriffs, coroners, and registers of probate, shall be nominated and appointedby the governor, by and with the advice and consent of the council; andevery such nomination shall be made by the governor, and made at leastseven days prior to such appointment.

    ~~~

    3. New HampshireCitation: N.H. CONST. of 1776, art. 46, available athttp://bit.ly/1aEG7Br.

    Background: New Hampshires 1776 Constitution vested most of the governments powerin the states Executive Branch. The states Executive Branch consisted ofthe governor and his Executive Council, and held sole veto power over the

    General Courts legislation. The Executive Branch also had the authority tocall, adjourn, and dissolve the General Court. Article 46 details the ExecutiveBranchs appointments power.

    Quote: Art. 46: All judicial officers, the attorney general, and all officers of the navy,and general and field officers of the militia, shall be nominated and appointedby the governor and council; and every such nomination shall be made at

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    least three days prior to such appointment; and no appointment shall takeplace, unless a majority of the council agree thereto.

    ~~~

    4. North CarolinaCitation: N.C. CONST. of 1776, art. XXXIII, available at

    http://consource.org/document/constitution-of-north-carolina-1776-12-18/.

    Background: The 1776 North Carolina Constitution vested most of the governmentspower in the states popularly elected bicameral legislature, the GeneralAssembly. The General Assembly could both elect and remove the governor.Article XXXIII provides for the Governors limited role in the appointmentsprocess.

    Quote: XXXIII. That the Justices of the Peace, within their respective counties in

    this State, shall in future be recommended to the Governor for the timebeing, by the Representatives in General Assembly; and the Governor shallcommission them accordingly: and the Justices, when so commissioned, shallhold their offices during good behaviour [sic], and shall not be removed fromoffice by the General Assembly, unless for misbehaviour [sic], absence, orinability.

    ~~~

    5. PennsylvaniaCitation: PA. CONST. of 1776, 20, available at

    http://consource.org/document/constitution-of-pennsylvania-1776-9-28/.

    Background: Pennsylvanias 1776 Constitution is the states first constitution following thepassage of the Declaration of Independence and is widely considered to bethe most democratic state constitution of the revolutionary era. Thisconstitution did not create any position for state governor; instead, theconstitution provided for a twelve-member executive council, which electeda president and a vice president. The president and vice president werepowerless to act without the consent of a majority of the council. Section 20details the councils involvement in the states appointments process.

    Quote: SECT. 20.The president, and in his absence the vice-president, with the

    council, five of whom shall be a quorum, shall have power to appoint andcommissionate [sic] judges, naval officers, judge of the admiralty, attorneygeneral and all other officers, civil and military, except such as are chosen bythe general assembly or the people, agreeable to this frame of government,and the laws that may be made hereafter; and shall supply every vacancy inany office, occasioned by death, resignation, removal or disqualification, untilthe office can be filled in the time and manner directed by law or thisconstitution.

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    ~~~

    6. South CarolinaCitation: S.C. CONST. of 1776, art. XXV, available at

    http://consource.org/document/constitution-of-south-carolina-1776-3-26.

    Background: South Carolinas bicameral legislature held most of the state governmentspower. The popularly elected lower house, the General Assembly, elected theLegislative Council, the upper house. The General Assembly also elected thestates President. The Presidents advisory Privy Council was composed ofthe vice president, three members elected by the legislative council, and threemembers of the General Council. Section XXV provides for the Presidentsrole in the appointments process.

    Quote: XXV. That the president and commander-in-chief, with the advice andconsent of the privy council, may appoint during pleasure, until otherwisedirected by resolution of the general assembly and legislative council, all

    other necessary officers, except such as are by law directed to be otherwisechosen.

    ~~~

    Citation: S.C. CONST. of 1778, art. XXXII, available athttp://avalon.law.yale.edu/18th_century/sc02.asp.

    Background: In 1778, South Carolina entirely replaced its 1776 constitution. The executivewas renamed Governor, but was still elected by the legislature. Under thestates 1778 constitution, the upper house, now the Senate, was no longerelected by the General Assembly. Instead, the Senate was elected by qualified

    voters (white male landowners with certain age and religious qualifications).Section XXXII provides for the governors role in the appointments process.

    Quote: XXXII. That the governor and commander-in-chief, with the advice andconsent of the privy council, may appoint during pleasure, until otherwisedirected by law, all other necessary officers, except such as are now by lawdirected to be otherwise chosen.

    ~~~

    7. VirginiaCitation: VA. CONSTof 1776, available at

    http://consource.org/document/constitution-of-virginia-1776-6-29/.

    Background: In Virginia, an Executive Council provided a considerable check on theGovernors appointment power. Though the Governor could convene theCouncil at his will, he was powerless to conduct legislative affairs without theCouncils advice. Here, Virginias 1776 Constitution provides for theGovernors role in the appointments process.

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    Quote: The Governor, with the advice of the Privy Council, shall appoint Justices ofthe Peace for the counties; and in case of vacancies, or a necessity ofincreasing the number hereafter, such appointments to be made upon therecommendation of the respective County Courts

    ~~~

    c. State Practice Pre-Dating the Federal Constitution

    8. New YorkCitation: THE FEDERALIST NO. 69 (Alexander Hamilton), available at

    http://consource.org/document/the-federalist-no-69-1788-3-14/#50fe46c7fbed7d7227b9b8fc.

    Background: In New York, the Governor shared his appointments power with a Council

    composed of four senators who were selected by the state assembly. Shouldthe Council be divided on an appointment, the Governor had the decidingvote. In this essay, Hamilton highlights the differences in the appointmentsprocedures in the New York constitution and the United States Constitution.Hamilton also explains why the United States Constitution better safeguardsagainst private interests unduly influencing the appointments process.

    Quote: Nor is [the Presidents power of appointment] equal to that of the Governorof New-York, if we are to interpret the meaning of the constitution of theState by the practice which has obtained under it. The power of appointmentis with us lodged in a Council composed of the Governor and four members

    of the Senate chosen by the Assembly. The Governor claims and hasfrequently exercised the right of nomination, and is entitled to a casting votein the appointment. If he really has the right of nominating, his authority is inthis respect equal to that of The President, and exceeds it in the article of thecasting vote. In the national government, if the Senate should be divided, noappointment could be made: In the government of New-York, if the Councilshould be divided the Governor can turn the scale and confirm his ownnomination. If we compare the publicity which must necessarily attend themode of appointment by The President and an entire branch of the nationalLegislature, with the privacy in the mode appointment by the Governor ofNew-York, closeted in a secret apartment with at most four, and frequentlywith only two persons, and if we at the same time consider how much moreeasy it must be to influence the small number of which a Council ofAppointment consist than the considerable number of which the nationalSenate would consist, we cannot hesitate to pronounce, that the power of theChief Magistrate of this State in the disposition of offices must in practice begreatly superior to that of the Chief Magistrate of the Union.

    ~~~

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    d. Constitutional Convention Debates

    Citation: James Madisons Notes on the Constitutional Convention (June 5, 1787)(Statement of James Wilson), available athttp://consource.org/document/james-madisons-notes-of-the-constitutional-convention-1787-6-5/.

    Background: The delegates to the Constitutional Convention were divided over where tovest the general appointments power. One groups concern for a corruptlegislative appointment process led some to favor vesting the power in astrong executive. Conversely, others feared that a strong executive wouldresemble a monarch. At the convention, James Wilson expressed hisconcerns for the appointment of judges by the legislature.

    Quote: Experience shewed [sic] the impropriety of such appointments by numerousbodies. Intrigue, partiality, and concealment were the necessaryconsequences. A principal reason for unity in the executive was that officersmight be appointed by a single, responsible person.

    ~~~

    Citation: James Madisons Notes on the Constitutional Convention (July 18, 1787),available athttp://consource.org/document/james-madisons-notes-of-the-constitutional-convention-1787-7-18/.

    Background: Initially suggested by Alexander Hamilton, the Senate confirmation step ofthe appointments process was a last-minute compromise between vesting theappointment power in the entire legislature and vesting the power in theexecutive alone. Though not immediately popular, Hamiltons plan wasultimately adopted after Nathaniel Gorham reintroduced the notion ofadvice and consent as a way for the executive to appoint judges in themode prescribed by the constitution of Massachusetts.

    Quote: Mr. Ghorum, wd. [sic] prefer an appointment by the 2d branch to anappointmt. [sic] by the whole Legislature; but he thought even that branchtoo numerous, and too little personally responsible, to ensure a good choice.He suggested that the Judges be appointed by the Execuve [sic]. with theadvice & consent of the 2d branch, in the mode prescribed by theconstitution of Masts. This mode had been long practised [sic] in thatcountry, & was found to answer perfectly well.

    ~~~

    Citation: James Madisons Notes on the Constitutional Convention (July 21, 1787),available athttp://press-pubs.uchicago.edu/founders/documents/a2_2_2-3s1.html.

    Background: The decision to vest the appointments power jointly in the executive andsenate was seen as a way of minimizing the influence of private interests and

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    involving all states in the appointments process. The president was viewed asa national officer representative of the countrys overall interests.

    Quote: Mr. Madison stated as his reasons for the motion. 1 that it secured theresponsibility of the Executive who would in general be more capable &likely to select fit characters than the Legislature, or even the 2d. b. of it, who

    might hide their selfish motives under the number concerned in theappointment- 2 that in case of any flagrant partiality or error, in thenomination, it might be fairly presumed that 2/3 of the 2d. branch wouldjoin in putting a negative on it. 3. that as the 2d. b. was very differentlyconstituted 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 principleof compromise which had prevailed in other instances required in this thattheir shd. [sic] be a concurrence of two authorities, in one of which thepeople, in the other the states, should be represented. The ExecutiveMagistrate wd [sic] be considered as a national officer, acting for and equallysympathizing [sic] with every part of the U. States. If the 2d. branch alone

    should have this power, the Judges might be appointed by a minority of thepeople, tho' [sic] by a majority, of the States, which could not be justified onany principle as their proceedings were to relate to the people, rather than tothe States: and as it would moreover throw the appointments entirely intothe hands of ye Nthern [sic] States, a perpetual ground of jealousy &discontent would be furnished to the Southern States.

    ~~~

    e. State Ratification Debates

    1. PennsylvaniaCitation: An American Citizen, On the Federal Government I, II, III, Independent

    Gazetteer, September 26-29, 1787, available athttp://rotunda.upress.virginia.edu/founders/default.xqy?keys=RNCN-print-02-02-02-0002-0002-0011 (subscription required).

    Background: Tench Coxes essays were some of the first major defenses of theConstitution. In this essay, he discusses what he views as the limited powersof the President under the Constitution.

    Quote: Our President will fall very far short indeed of any prince in his annualincome, which will not be hereditary, but the absolute allowance of the

    people passing through the hands of their other servants from year to year asit becomes necessary. There will be no burdens on the nation to provide forhis heir or other branches of his family. Tis probable, from the state ofproperty in America and other circumstances, that many citizens will exceedhim in show and expense, those dazzling trappings of kingly rank and power.He will have no authority to make a treaty without two-thirds of the Senate,nor can he appoint ambassadors or other great officers without their

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    approbation, which will remove the idea of patronage and influence, and ofpersonal obligation and dependence. The appointment of even the inferiorofficers may be taken out of his hands by an act of Congress at any time; hecan create no nobility or titles of honor, nor take away offices during goodbehavior. His person is not so much protected as that of a member of the

    House of Representatives; for he may be proceeded against like any otherman in the ordinary course of law. He appoints no officer of the separatestates. He will have no influence from placemen in the legislature, nor can heprorogue or dissolve it. He will have no power over the treasures of the state;and lastly, as he is created through the Electors by the people at large, hemust ever look up to the support of his creators. From such a servant withpowers so limited and transitory, there can be no danger, especially when weconsider the solid foundations on which our national liberties are immovablyfixed by the other provisions of this excellent Constitution. Whatever ofdignity or authority he possesses is a delegated part of their majesty and theirpolitical omnipotence, transiently vested in him by the people themselves fortheir own happiness

    ~~~

    Citation: Thomas McKean, Speech at Convention (November 24, 1787), available athttp://rotunda.upress.virginia.edu.ezp-prod1.hul.harvard.edu/founders/default.xqy?keys=RNCN-print-02-02-02-0003-0002 (subscription required).

    Background: In response to objections raised during the Pennsylvania ratifyingconvention, here Thomas McKean defends the constitutional design ofshared appointments power between the Senate and the President.

    Quote: The Senators have a share in the appointment of certain officers, and are tobe the judges on the impeachment of such officers. This is blending theexecutive with the legislative and judicial departments, and is likely to screenthe offenders impeached because of the concurrence of a majority of theSenate in their appointment.The President is to nominate to office, andwith the advice and consent of the Senate appoint officers, so that he is theresponsible person, and when any such impeachment shall be tried, it is morethan probable, that not one of the Senate, who concurred in theappointment, will be a Senator, for the seats of a third part are to be vacatedevery two years, and of all in six. As to the Senators having a share in theexecutive power, so far as to the appointment of certain officers, I do not

    know where this restraint on the President could be more safely lodged.Some may think a privy councillor [sic] might have been chosen by everystate, but this could little mend the matter if any, and it would be aconsiderable additional expense to the people. Nor need the Senate be underany necessity of sitting constantly, as has been alleged, for there is an expressprovision made to enable the President to fill up all vacancies that mayhappen during their recess; the commissions to expire at the end of the nextsessions. The President of the United States must nominate to all offices,before the persons can be chosen; he here consents and becomes liable.

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    [reasons in favor of plan] In Pennsylvania, there is no responsibility inCouncil; because the president has given up his right of nomination. Andthey appoint by ballot, and therefore are not responsible. There is scarce aking in Europe that has not some check upon him in the appointment ofofficers.Senators have a share in the appointment of certain officers, and

    yet must try them on impeachment which blends the executive and judicialofficesThis resembles the constitution of Great Britain which is deemedthe best balanced in the world. It holds in the strongest light in theconstitution of Pennsylvania where the Executive Council alone appoint andtry impeachments.

    ~~~

    Citation: James Wilson, Pennsylvania Ratification Convention (December 11, 1787),available athttp://press-pubs.uchicago.edu/founders/documents/a2_2_2-3s3.html.

    Background: In this speech, James Wilson compares the Presidents relationship to theSenate in nominating officers to his overall role in the treaty process. ToWilson, just as the Senate cannot make any treaty without the Presidentsapproval, the Senate cannot appoint any new officers without first receivingthe Presidents nomination. Wilsons comparison also highlights theimportance of executive involvement in certain legislative activities.

    Quote: We are told that the share which the Senate have in making treaties isexceptionable; but here they are also under a check, by a constituent part ofthe government, and nearly the immediate representative of the people--Imean the President of the United States. They can make no treaty without hisconcurrence. The same observation applies in the appointment of officers.

    Every officer must be nominated solely and exclusively by thePresidentAnd let it be attended to, that, even in the making of treaties, thestates are immediately represented, and the people mediately [sic]represented; two of the constituent parts of government must concur inmaking them. Neither the President nor the Senate, solely, can complete atreaty; they are checks upon each other, and are so balanced as to producesecurity to the people.

    ~~~

    2. Virginia

    Citation: Richard Henry Lee to Edmund Randolph (October 16, 1787), available athttp://rotunda.upress.virginia.edu/founders/RNCN-02-08-02-0001-0045-0001(subscription required).

    Background: In this letter, Richard Henry Lee expresses concern about the joint power ofthe President and Senate to appoint all civil and military officers.

    Quote: It has hitherto been supposed a fundamental maxim that in governmentsrightly balanced, the different branches of legislature should be unconnected,

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    and that the legislative and executive powers should be separate:In thenew constitution, the president and senate have all the executive and twothirds of the legislative power. In some weighty instances (as making all kindsof treaties which are to be the laws of the land) they have the wholelegislative and executive powers. They jointly, appoint all officers civil and

    military, and they (the senate) try all impeachments either of their ownmembers, or of the officers appointed by themselves.

    ~~~

    Citation: George Mason, Letter to John Lamb (June 9, 1788), available athttp://rotunda.upress.virginia.edu/founders/RNCN-02-09-02-0003-0070-0005(subscription required).

    Background: George Mason opposed the new Constitution but eventually agreed to ratify;though, he fought for amending the Constitution to include a bill of rights.In this letter to John Lamb, Mason outlines his proposed amendments,which including vesting the appointments power in the president and anexecutive council.

    Quotes: That there shall be a constitutional responsible Council, to assist in theAdministration of Government, with the Power of chusing out of their ownBody, a President, who in case of the Death, Resignation or Disability ofthe President of the United States, shall act, pro tempore, as Vice Presidentinstead of a Vice President elected in the Manner prescribed by theConstitution; and that the Power of making Treaties, appointingAmbassadors, other public Ministers or Consuls, Judges of the SupremeCourts, and all other Officers of the United States, whose appointments arenot otherwise provided for by the Constitution, and which shall be

    established by Law, be vested in the president of the United States with theAssistance of the Council so to be appointed.

    ~~~

    Citation: James Monroe, Speech during the Convention (June 10, 1788), available athttp://rotunda.upress.virginia.edu/founders/RNCN-02-09-02-0004-0011-0001(subscription required).

    Background: Although James Monroe eventually voted to ratify the Constitution, he hadreservations about the Constitutions design. Specifically, he worried aboutthe nature of representation in Congress and how that would affect decisions

    by the federal government.

    Quote: He is to nominate, and by and with the advice and consent of the Senate, toappoint Ambassadors, other public Ministers, and Consuls, Judges of theSupreme Court, and all other officers of the United States. The concurrenceof a bare majority of those who may be present, will enable him to do theseimportant acts. It does not require the consent of two-thirds, even of thosewho may be present. Thus, I conceive the Government is put entirely into

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    the hands of seven States; indeed into the hands of two-thirds of a majority.The Executive branch is under their protection, and yet they are freed from adirect charge of combination. Upon reviewing this Government, I must say,under my present impression, I think it a dangerous Government, andcalculated to secure neither the interests, nor the rights of our countrymen.

    Under such a one, I shall be averse to embark the best hopes and prospectsof a free people. We have struggled long to bring about this revolution, bywhich we enjoy our present freedom and security. Why then this hastethiswild precipitation?

    ~~~

    f. Anti-Federalist & Federalist Papers

    Citation: THE FEDERALIST NO. 76 (Alexander Hamilton), available athttp://consource.org/document/the-federalist-no-76-1788-4-1/

    Background: In this essay, Alexander Hamilton discusses the importance of vesting theexecutive with primary appointments authority. To Hamilton, vesting theappointments power in a single executive was the only way to ensure thatappointments were based on merit and not political considerations.

    Quote: Those who have themselves reflected upon the subject, or who haveattended to the observations made in other parts of these papers, in relationto the appointment of the President, will I presume agree to the position thatthere would always be great probability of having the place supplied by a manof abilities, at least respectable. Premising this, I proceed to lay it down as arule, that one man of discernment is better fitted to analise [sic] and estimate

    the peculiar qualities adapted to particular offices, than a body of men ofequal, or perhaps even of superior discernment. The sole and undividedresponsibility of one man will naturally beget a livelier sense of duty and amore exact regard to reputation. He will on this account feel himself understronger obligations, and more interested to investigate with care the qualitiesrequisite to the stations to be filled, and to prefer with impartiality thepersons who may have the fairest pretensions to them. He will have fewerpersonal attachments to gratify than a body of men, who may each besupposed to have an equal number, and will be so much the less liable to bemisled by the sentiments of friendship and of affection. A single well directedman by a single understanding, cannot be distracted and warped by thatdiversity of views, feelings and interests, which frequently distract and warp

    the resolutions of a collective body. There is nothing so apt to agitate thepassions of mankind as personal considerations, whether they relate toourselves 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 anassembly of men, we must expect to see a full display of all the private andparty likings and dislikes, partialities and antipathies, attachments andanimosities, which are felt by those who compose the assembly. The choicewhich may at any time happen to be made under such circumstances will of

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    course be the result either of a victory gained by one party over the other, orof a compromise between the parties. In either case, the intrinsic merit of thecandidate will be too often out of sight.

    ~~~

    Citation: THE FEDERALIST NO. 76 (Alexander Hamilton), available athttp://consource.org/document/the-federalist-no-76-1788-4-1/.

    Background: Here, again, Hamilton underscores his support for vesting a robustappointments power in the executive.

    Quote: It is not easy to conceive a plan better calculated than this, to produce ajudicious choice of men for filling the offices of the Union; and it will notneed proof that on this point must essentially depend the character of itsadministration. It will be agreed on all hands, that the power of appointmentin ordinary cases ought to be modified in one of three ways. It ought eitherto 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 itby the people at large, will be readily admitted to be impracticable; as, wavingevery other consideration it would leave them little time to do any thing else.When therefore mention is made in the subsequent reasonings [sic] of anassembly or body of men, what is said must be understood to relate to aselect body or assembly of the description already given. The peoplecollectively from their number and from their dispersed situation cannot beregulated in their movements by that systematic spirit of cabal and intrigue,which will be urged as the chief objections to reposing the power in questionin a body of men.

    ~~~Citation: Native of Virginia: Observations upon the Proposed Plan of Federal

    Government, 2 April, 1788, available athttp://rotunda.upress.virginia.edu/founders/RNCN-02-09-02-0003-0010(subscription required).

    Background: Most likely written by Richard Henry Lee, this tract goes through each clauseof the Constitution and answers possible objections. In this specific section,Lee discusses the appointments and treaty-making power of the President.

    Quote: He shall have power, by and with the advice and consent of the Senate, to make treaties,provided two-thirds of the Senators present concur; and he shall nominate, and by and withthe advice and consent of the Senate, shall appoint Ambassadors, other public Ministersand Consuls, Judges of the Supreme Court, and all other officers of the United, States,whose appointments are not herein otherwise provided for, and which shall be established bylaw. But the Congress may, by law, vest the appointment of such inferior officers, as theythink proper, in the President alone, in the Courts of law, or in the heads of departments.

    The Constitution has here lessened the authority of the President, by makingthe assent of two-thirds of the Senate necessary in the important cases of

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    making treaties, in appointing Ambassadors, the Judges of the SupremeCourt, and the great officers of State.

    Writers upon government have established it as a maxim, that the Executiveand Legislative authority should be kept separate. But the position should betaken with considerable latitude. The Executive authority here given to a

    branch of the Legislature, is no novelty, in free governments. In England, theExecutive, or Cabinet Council, is taken indifferently from either House ofParliament. In the States of New York and Jersey, the Senate not only act asan Executive Council, but also form a part of the Court of Appeals.

    ~~~

    Citation: George Mason, Objections to the New Constitution,Massachusetts Centinel,November 21, 1787, available athttp://rotunda.upress.virginia.edu/founders/RNCN-02-04-02-0003-0080(subscription required).

    Background: Published in theMassachusetts Centinel, George Mason outlined his objectionsto the Constitution, specifically the lack of bill of rights and the House ofRepresentatives lack of power in relation to the other bodies. Mason alsobelieved that the lack of a constitutional council for the President meant thathe would not receive proper information and advice andthat the Presidentand Senate were improperly connected due to the shared appointmentspower.

    Quote: The President of the United States has no Constitutional Council (a thingunknown in any safe and regular government) he will therefore beunsupported by proper information and advice; and will generally be directed

    by minions and favouritesor he will become a tool to the Senateor aCouncil of State will grow out of the principal officers of the greatdepartments; the worst and most dangerous of all ingredients for such aCouncil, in a free country; for they may be induced to join in any dangerousor oppressive measures, to shelter themselves, and prevent an inquiry intotheir own misconduct in office: Whereas had a constitutional council beenformed (as was proposed) of six members, viz. two from the eastern, twofrom the middle, and two from the southern States, to be appointed by voteof the States in the House of Representatives, with the same duration androtation of office as the Senate, the Executive would always have had safeand proper information and advice: The President of such a Council mighthave acted as Vice-President of the United States,pro tempore, upon any

    vacancy or disability of the Chief Magistrate; and long continued sessions ofthe Senate would in a great measure have been prevented. From this fataldefect of a constitutional council has arisen the improper power of theSenate, in the appointment of publick officers, and the alarming dependenceand connection between that branch of the Legislature and the SupremeExecutive. Hence also sprung that unnecessary and dangerous officer, theVice-President, who for want of other employment, is made President of theSenate; thereby dangerously blending the Executive and Legislative powers;

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    besides always giving to some one of the States an unnecessary and unjustpreeminence over the others.

    ~~~

    Citation: Richard Henry Lee, Objections to the Constitution, Salem Mercury, January 8,

    1788, available athttp://rotunda.upress.virginia.edu/founders/RNCN-02-05-02-0002-0107(subscription required).

    Background: Quotes from Richard Henry Lees objections and proposed amendments tothe Constitution were published in the Salem Mercury. Richard Henry Leecriticized the connection and balance of powers between the Senate and thePresident.

    Quote: That the legislative and executive powers are blended togetherThat thePresident and Senate have all the executive, and two thirds of the legislative,powerand, in some weighty instances, (as making treaties, which are to bethe laws of the land) the whole legislative and executive powersThat, they

    appoint all civil and military officersand the Senate try all impeachments,even of their own members, or officers by them appointedThat thisformidable combination of power is without responsibilityThat the onlycheck in favour of the democratick principle is the House of Representatives,which is a mere shred or rag of representation.

    ~~~

    Citation: Luther Martin, Genuine Information(1787), reprinted inHERBERTJ. STORING,THE COMPLETEANTI-FEDERALIST (1981), available athttp://www.consource.org/document/luther-martin-genuine-information-1787-12-28/.

    Background: Luther Martin, a prominent anti-federalist, was most concerned about theimpact of a powerful central government on smaller states in the republic,specifically Maryland. Martins Genuine Information, which was initiallypublished in the MARYLAND GAZETTEand later reprinted and popularlycirculated as a pamphlet, expresses these concerns in relationship to theappointments process.

    Quote: To that part of this article also, which gives the President a right to nominateand with the consent of the senate to appoint all officers, civil and military,of the United States, there was considerable oppositionit was said that the

    person whonominates,

    will always in realityappoint

    , and that this was givingthe President a power and influence, which together with the other powers,bestowed upon him, would place him above all restraint or controul[sic]That these circumstances, combined together, will enable him, whenhe pleases, to become a Kingin name, as well as in substance

    ~~~

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    Citation: Hampden, Pittsburgh Gazette, February 16, 1788, available athttp://rotunda.upress.virginia.edu/founders/RNCN-02-02-02-0004-0002-0015(subscription required).

    Background: Under the pseudonym Hampden, William Findley wrote this essay critiquingthe U.S. Constitution. Here, he describes the appointments process as vested

    primarily in the Senate, with the President only acting as a nominatingofficer.

    Quote: Of the same kind, and full as inconsistent and dangerous, is the first clause ofthe second Article compared with the second clause of the second section,we first find the President fully and absolutely vested with the executivepower, and presently we find the most important and most influentialportion of the executive power, viz., the appointment of all officers vested inthe Senate; with whom the President only acts as a nominating member.

    ~~~

    g. Early American Treatises

    Citation: 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITEDSTATES1525, available athttp://www.constitution.org/js/js_337.htm.

    Background: In detailing the drafting of the United States Constitution, Joseph Storyhighlights the Framers rationale for vesting the appointments power in boththe President and the Senate. Here, Story explains that the presidents powerto nominate is incomplete without the Senates confirmation. Story describeshow vesting the appointments power in both the President and the Senateensured that each branch acted as a check on the others power.

    Quote: The president is to nominate, and thereby has the sole power to select foroffice; but his nomination cannot confer office, unless approved by amajority of the senate. His responsibility and theirs is thus complete, anddistinct. He can never be compelled to yield to their appointment of a manunfit for office; and, on the other hand, they may withhold their advice andconsent from any candidate, who in their judgment does not possess duequalifications for office. Thus, no serious abuse of the power can take placewithout the co-operation of two co-ordinate branches, of the government,acting in distinct spheres; and, if there should be any improper concession oneither side, it is obvious, that from the structure and changes, incident to

    each department, the evil cannot long endure, and will be remedied, as itshould be, by the elective franchise. The consciousness of this check willmake the president more circumspect, and deliberate in his nominations foroffice. He will feel, that, in case of a disagreement of opinion with the senate,his principal vindication must depend upon the unexceptionable character ofhis nomination. And in case of a rejection, the most, that can be said, is, thathe had not his first choice. He will still have a wide range of selection; and his

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    responsibility to present another candidate, entirely qualified for the office,will be complete and unquestionable.

    ~~~

    Citation: 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED

    STATES1528, available athttp://www.constitution.org/js/js_337.htm.

    Background: Here, Story again explains that vesting the appointments power in both theSenate and the Executive ensures that neither branch exerts too muchinfluence over the appointments process. Story also stresses that these checksand balances carefully preserve the separation of powers between thedifferent branches of government.

    Quote: 1528. It was objected by some persons, at the time of the adoption of theconstitution, that this union of the executive with the senate in appointmentswould give the president an undue influence over the senate. This argument

    is manifestly untenable, since it supposes, that an undue influence over thesenate is to be acquired by the power of the latter to restrain him. Even, ifthe argument were well founded, the influence of the president over thesenate would be still more increased, by giving him the exclusive power ofappointment; for then he would be wholly beyond restraint. The oppositeground was assumed by other persons, who thought the influence of thesenate over the president would by this means become dangerous, if notirresistible.There is more plausibility in this suggestion; but it proceeds uponunsatisfactory reasoning. It is certain, that the senate cannot, by their refusalto confirm the nominations of the president, prevent him from the properdischarge of his duty. The most, that can be suggested, is, that they mayinduce him to yield to their favourites [sic], instead of his own, by resistinghis nominations. But if this should happen in a few rare instances, it isobvious, that his means of influence would ordinarily form a counter check.The power, which can originate the disposal of honours [sic] andemoluments, is more likely to attract, than to be attracted by the power,which can merely obstruct their course. But in truth, in every system ofgovernment there are possible dangers, and real difficulties; and to providefor the suppression of all influence of one department, in regard to another,would be as visionary, as to provide, that human passions and feelings shouldnever influence public measures. The most, that can be done, is to providechecks, and public responsibility

    ~~~

    Citation: 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITEDSTATES1529-31, available at http://www.constitution.org/js/js_337.htm.

    Background: Here, Story explains that the Appointments Clause enables Congress to useits discretion to empower the President via legislation to appoint certaininferior officers. However, the Constitution is unclear on what exactlyconstitutes an inferior office.

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    Quote: 1529. The other part of the clause, while it leaves to the president theappointment to all offices, not otherwise provided for, enables congress tovest the appointment of such inferior officers, as they may think proper, inthe president, in the courts of law, or in the heads of departments. Thepropriety of this discretionary power in congress, to some extent, cannot well

    be questioned. If any discretion should be allowed, its limits could hardlyadmit of being exactly defined; and it might fairly be left to congress to actaccording to the lights of experience. It is difficult to foresee, or to providefor all the combinations of circumstances, which might vary the right toappoint in such cases. In one age the appointment might be most proper inthe president; and in another age, in a department. 1530. In the practicalcourse of the government, there does not seem to have been any exact linedrawn, who are, and who are not, to be deemed inferior officers in the senseof the constitution, whose appointment does not necessarily require theconcurrence of the senate. In many cases of appointments, congress haverequired the concurrence of the senate, where, perhaps, it might not be easyto say, that it was required by the constitution. The power of congress has

    been exerted to a great extent, under this clause, in favour [sic] of theexecutive department. The president is by law invested, either solely, or withthe senate, with the appointment of all military and naval officers, and of themost important civil officers, and especially of those connected with theadministration of justice, the collection of the revenue, and the supplies andexpenditures of the nation

    ~~~

    h. Congressional Records from First Congresses

    Citation: John Adams, Notes of a Debate in the Senate (July 15, 1789), reprinted inTHEWORKS OFJOHNADAMS (Charles Francis ed. 1850), available at http://press-pubs.uchicago.edu/founders/documents/a2_2_2-3s44.html.

    Background: This Senate debate focused on the presidents powers of appointment andremoval. The involvement of both the Senate and the President in theappointments power was characterized as a way to avoid despoticgovernment. Nevertheless, it was believed that the Senates appointmentpower was secondary to the Presidents.

    Quote: It is not an equal sharing of the power of appointment between the President

    and Senate. The Senate are only a check to prevent impositions on thePresident. The minister an agent, a deputy to the great executive.

    ~~~

    Citation: James Madison, Speech to Congress on the Presidents Powers (July 16,1789), available athttp://www.constitution.org/jm/17890616_removal.htm.

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    Background: In a broader discussion regarding the Presidents removal powers, JamesMadison expressed his support for the separation of powers between theExecutive and Legislative branches. Though the Senates advice and consentrole in the appointments process is an executive duty, the President isotherwise vested with all executive power; the Senates involvement in this

    process is therefore secondary to the Presidents leadership throughnominations.

    Quote: The constitution affirms, that the executive power shall be vested in thepresident: Are there exceptions to this proposition? Yes there are. Theconstitution says that, in appointing to office, the senate shall be associatedwith the president, unless in the case of inferior officers, when the law shallotherwise direct. Have we a right to extend this exception? I believe not. Ifthe constitution has invested all executive power in the president, I ventureto assert, that the legislature has no right to diminish or modify his executiveauthority.

    ~~~

    i. Presidential Practice During the First Presidential Administrations

    Citation: George Washington to Senate Committee on Treaties and Nominations(Aug. 10, 1789) reprinted in30 JOHN C. FITZPATRICK,THEWRITINGS OFGEORGEWASHINGTON FROM THE ORIGINAL MANUSCRIPT SOURCES, 1745-1799, 377-79 (1931), available athttp://press-pubs.uchicago.edu/founders/documents/a2_2_2-3s12.html.

    Background: Here, George Washington explains his views on the appointments powerbeing jointly vested in the President and the Senate. To Washington, though

    the Senates consent is needed to complete an appointment, the Presidentleads the process.

    Quote: The President has the power by and with the advice and consent of theSenate, to make treaties and to appoint Officers. The Senate when thesepowers are exercised, is evidently a Council only to the President, however[necessary] its concurrence may be to his Acts. It seems incident to thisrelation between them, that not only the timebut theplaceand manner ofconsultation should be with the PresidentIn the appointment to offices,the agency of the Senate is purely executive, and they may be summoned tothe PresidentThe mannerof consultation may also vary. The indisposition

    of the President may supersede the mere question of conveniency [sic]. Theinclination or ideas of different Presidents may be different. The opinionsboth of President and Senators as to the proper manner may be changed byexperience. In some kinds of business it may be found best for the Presidentto make his propositions orally and in person, in others by written message.On some occasions it may be most convenient that the President shouldattend the deliberations and decisions on his propositions; on others that heshould not; or that he should not attend the whole of the time and forgiving their consent and advice in either thepresenceor absenceof the

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    President, leaving him free to use the mode and place that may be foundmost eligible and accordant with other business which may be before him atthe time.

    ~~~

    The Senates Advice and Consent Function Under the Appointments Clause (ArticleII, Sect. 2)

    a. State Constitutions Pre-Dating the Federal Constitution

    1. DelawareCitation: DEL. CONST. of 1776, art. 12, available at

    http://consource.org/document/constitution-of-delaware-1776-9-21/.

    Background: Delawares Executive branch consisted of a President and a Privy Council,both selected by the states bicameral legislature, the General Assembly. ThePresident required the Privy Councils advice and consent to act. Article 12

    describes the roles of the president and general assembly in the statesappointments process.

    Quote: ART. 12. The president and general assembly shall by joint ballot appointthree justices of the supreme court for the State, one of whom shall be chiefjustice, and a judge of admiralty, and also four justices of the courts ofcommon pleas and orphans' courts for each county, one of whom in eachcourt shall be styled "chief justice," (and in case of division on the Ballot thepresident shall have an additional casting voice,) to be commissioned by thepresident under the great sealThe president and privy council shall appointthe secretary, the attorney-general, registers for the probate of wills and

    granting letters of administration, registers in chancery, clerks of the courtsof common pleas and orphans' courts, and clerks of the peace

    ~~~

    2. GeorgiaCitation: GA. CONST. of 1777, art. LIII available at

    http://consource.org/document/constitution-of-georgia-1777-2-5/.

    Background: Georgias l777 Constitution created a unicameral legislature, the House of

    Assembly, which held most of the governments power. The House ofAssembly chose the Governor and his executive council, which jointlycomposed the Executive Branch. Article LIII describes the House ofAssemblys appointments power.

    Quote: ART. LIII. All civil officers in each county shall be annually elected on theday of the general election, except justices of the peace and registers ofprobates, who shall be appointed by the house of assembly.

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    ~~~

    3. MarylandCitation: MD. CONST. of 1776, art. XIII, available at

    http://consource.org/document/constitution-of-maryland-1776-11-11/.

    Background: The Maryland Constitution of 1776 provided for a bicameral legislature, theGeneral Assembly, which had power to choose both the Governor and theCouncil to the Governor. Article XIII provides for the House of Delegates,the legislatures lower house, to unilaterally appoint certain offices.

    Quote: XIII. That the Treasurers (one for the western, and another for the easternshore) and the Commissioners of the Loan Office, may be appointed by theHouse of Delegates, during their pleasure

    ~~~

    4.

    Massachusetts

    Citation: THE CHARTER OF MASSACHUSETTS BAYof 1691, reprinted in 1 THE FEDERALAND STATE CONSTITUTIONS, COLONIAL CHARTERS,AND OTHER ORGANICLAWS OF THE STATES, TERRITORIES,AND COLONIES NOR OR HERETOFOREFORMING THE UNITED STATES OFAMERICA 1789 (Francis Newton Thorpe,ed., 1909), available athttp://consource.org/document/charter-of-massachusetts-bay-1629-3-4/.

    Background: Dating back to 1691, the Massachusetts colonial charter included an adviceand consent function for a popularly elected Executive Council, in additionto the governors appointment power. This Executive Council played a

    nearly co-equal role to the Governors in the appointment process.

    Quote: Wee doe further Grant and Ordeyne [sic] that it shall and may be lawfull [sic]for the said Governour [sic] with the advice and consent of the Councill [sic]or Assistants from time to time to nominate and appoint JudgesCommissioners of Oyer and Terminer Sherffs Provosts Marshalls Justices ofthe Peace and other Officers to Our Councill [sic] and Courts of Justice

    ~~~

    Citation: MASS. CONST. of 1780, arts. VII & X, available athttp://consource.org/document/constitution-of-massachusetts-1780-10-

    25/.

    Background: Massachusetts executive branch was composed of a Governor, the supremeexecutive magistrate, and his nine-member council, chosen by the statesbicameral legislature, the General Court. The General Court held most of thepower in the state, and each house could appoint its own members.

    Quote: Art. VII. The senate shall choose its own president, appoint its own officers,and determine its own rules of proceedings.

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    Art. X: The house of representatives shall be the judge of the returns,elections, and qualifications of its own members, as point out in theconstitution; shall choose their own speaker, appoint their own officers, andsettle the rules and order of proceeding in their own house.

    ~~~

    5. New JerseyCitation: N.J. CONST. of 1776, art. XII, available at

    http://consource.org/document/constitution-of-new-jersey-1776-7-2/.

    Background: New Jerseys 1776 Constitution was hastily drafted and created no formalseparation of powers. The popularly elected bicameral legislature held mostof the governments power. The Legislative Council (the upper house) andGeneral Assembly (the lower house) jointly elected the states Governor. TheGovernor was considered president of the Council, but he did not have vetopower, nor did he have a general appointments power. Article XII provides

    for the Council and Assembly to jointly appoint state officials.

    Quote: XII. That the Judges of the Supreme Court shall continue in office for sevenyears: the Judges of the Inferior Court of Common Pleas in the severalcounties, Justices of the Peace, Clerks of the Supreme Court, Clerks of theInferior Court of Common Pleas and Quarter Sessions, the Attorney-General, and Provincial Secretary, shall continue in office for five years: andthe Provincial Treasurer shall continue in office for one year; and that theyshall be severally appointed by the Council and Assembly, in manneraforesaid, and commissioned by the Governor, or, in his absence, the Vice-President of the Council. Provided always, that the said officers, severally,

    shall be capable of being re-appointed, at the end of the terms severallybefore limited; and that any of the said officers shall be liable to be dismissed,when adjudged guilty of misbehaviour [sic], by the Council, on animpeachment of the Assembly.

    ~~~

    6. New YorkCitation: N.Y. CONST. of 1777, art. XXIII, available at

    http://consource.org/document/constitution-of-new-york-1777-4-20/.

    Background: New Yorks 1777 Constitution vested the states bicameral legislature with

    lawmaking powers. The executive branch was composed of the Governorand a Council of Appointment, which consisted of four senators selectedannually by the Assembly. Article XXIII describes the Council ofAppointments leadership in the appointments process and thecorresponding limitations on the Governors powers.

    Quote: XXIII. That all officers, other than those who, by this constitution, aredirected to be otherwise appointed, shall be appointed in the manner

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    following, to wit: The assembly shall, once in every year, openly nominateand appoint one of the senators from each great district, which senators shallform a council for the appointment of the said officers, of which thegovernor for the time being, or the lieutenant governor, or the president ofthe senate, when they shall respectively administer the government, shall be

    president and have a casting voice, but no other vote; and with the adviceand consent of the said council, shall appoint all the said officers; and that amajority of the said council be a quorum. And further, the said senators shallnot be eligible to the said council for two years successively.

    ~~~

    Citation: N.Y. CONST. of 1777, art. XXX, available athttp://consource.org/document/constitution-of-new-york-1777-4-20/.

    Background: Here, the 1777 New York Constitution explains the selection process fordetermining the senators to represent the state in the United States Congress.The governor did not participate in the process.

    Quote: XXX. That Delegates to represent this State in the general Congress of theUnited States of America be annually appointed as follows, to wit: The senateand assembly shall each openly nominate as many persons as shall be equalto the whole number of Delegates to be appointed; after which nominationthey shall meet together, and those persons named in both lists shall beDelegates; and out of those persons whose names are not on both lists, one-half shall be chosen by the joint ballot of the senators and members ofassembly so met together as aforesaid.

    ~~~

    7. North CarolinaCitation: N.C. CONST. of 1776, art. XIII, available at

    http://consource.org/document/constitution-of-north-carolina-1776-12-18/.

    Background: The 1776 North Carolina Constitution vested most of the governmentspower in the states popularly elected bicameral legislature, the GeneralAssembly, which could both elect and remove the governor. Article XIIIdescribes the General Assemblys broad appointments power.

    Quote: XIII. That the General Assembly shall, by joint ballot of both houses,

    appoint Judges of the Supreme Courts of Law and Equity, Judges ofAdmiralty, and Attorney-General, who shall be commissioned by theGovernor, and hold their offices during good behavior.

    ~~~

    8. Pennsylvania

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    Citation: PA. CONST. of 1776, available athttp://consource.org/document/constitution-of-pennsylvania-1776-9-28/.

    Background: Pennsylvanias 1776 Constitution provided for a twelve-member executivecouncil, which would then elect a president and a vice president. Despite theleadership roles existing within the council, the president and vice president

    were powerless to act without the consent of a majority of the council.

    Quote: The COUNCIL OF CENSORS; who shall meet together on the secondMonday of November next ensuing their election; the majority of whomshall be a quorum in every case, except as to calling a convention, in whichtwo-thirds of the whole number elected shall agree: And whose duty it shallbe to enquire whether the constitution has been preserved inviolate in everypart; and whether the legislative and executive branches of government haveperformed their duty as guardians of the people, or assumed to themselves,or exercised other or greater powers than they are intitled [sic] to by theconstitution: They are also to enquire whether the public taxes have been

    justly laid and collected in all parts of this commonwealth, in what mannerthe public monies have been disposed of, and whether the laws have beenduly executed. For these purposes they shall have power to send for persons,papers, and records; they shall have authority to pass public censures, toorder impeachments, and to recommend to the legislature the repealing suchlaws as appear to them to have been enacted contrary to the principles of theconstitution.

    ~~~

    9. South CarolinaCitation: S.C. CONST. of 1776, art. XIX, available athttp://consource.org/document/constitution-of-south-carolina-1776-3-26.

    Background: South Carolinas bicameral legislature held most of the governments power.The popularly-elected lower house, the General Assembly, elected theLegislative Council, the upper house. The General Assembly also elected thestates President. The Presidents advisory Privy Council was composed ofthe vice president, three members elected by the legislative council, and threemembers of the General Council. Article XIX provides for the GeneralAssemblys leadership in the appointments process.

    Quote: XIX. That justices of the peace shall be nominated by the general assembly

    and commissioned by the president and commander-in-chief, duringpleasure. They shall not be entitled to fees except on prosecutions for felony,and not acting in the magistracy, they shall not be entitled to the privilegesallowed to them by law.

    ~~~

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    10.VirginiaCitation: VA. CONST. of 1776, available at

    http://consource.org/document/constitution-of-virginia-1776-6-29/.

    Background: In Virginia, an Executive Council considerably checked the Governors

    appointments power. Though the Governor could convene the Council athis will, he was powerless to conduct legislative affairs without the Councilsadvice. Here, Virginias 1776 Constitution provides for the leadership of thetwo houses in the states bicameral legislature in the appointments process.

    Quote: The two Houses of Assembly shall, by joint ballot, appoint Judges of theSupreme Court of Appeals, and General Court, Judges in Chancery, Judgesof Admiralty, Secretary, and the Attorney-General, to be commissioned bythe Governor, and continue in office during good behaviour [sic].

    b. State Practice Pre-Dating the Federal Constitution

    1. MassachusettsCitation: JOHNADAMS, THOUGHTS ON GOVERNMENT, reprinted in4 THEWORKS OF

    JOHNADAMS, SECOND PRESIDENT OF THE UNITED STATES: WITH A LIFE OFTHEAUTHOR, NOTES AND ILLUSTRATIONS (Charles Francis Adams, ed.1856)

    Background: Under colonial Massachusetts Royal Charter, the Governors Council wouldassist the Governor and the Lieutenant Governor and would provide adviceand consent in the appointments process. The Massachusetts state

    constitution of 1780 vested the Executive Council with similar influence inthe appointments process. In his THOUGHTS ON GOVERNMENT, JohnAdams highlighted the importance of the Council in its role as acounterweight to the Governor.

    Quote: [The Council] was a mediator between the two extreme branches of thelegislature, that which represents the people and that which is vested with theexecutive power.

    ~~~

    2. New YorkCitation: THE FEDERALIST NO. 77 (Alexander Hamilton), available at

    http://consource.org/document/the-federalist-no-77-1788-4-2/.

    Background: In this Federalist paper, Alexander Hamilton defends vesting theappointments power jointly in the President and the Senate by highlightingthe inefficiencies of New Yorks appointments process. To Hamilton, thefederal Constitutions two-step appointments procedure, in which thePresident took a leading role, ensured that no one branch exerted too much

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    influence over the appointments process. Hamilton viewed this as preferableto New Yorks closed-door appointments, which precluded any sort ofassurance that private interests and/or the Governors influence did notdictate the outcome of the appointment.

    Quote: The council of appointment consists of from three to five persons, of whomthe governor is always one. This small body, shut up in a private apartment,impenetrable to the public eye, proceeds to the execution of the trustcommitted to them. It is known that the governor claims the right ofnomination, upon the strength of some ambiguous expressions in theconstitution; but it is not known to what extent, or in what manner heexercises it; nor upon what occasions he is contradicted or opposed. Thecensure of a bad appointment, on account of the uncertainty of its author, andfor want of a determinate object, has neither pregnancy nor duration. Andwhile an unbounded field for cabal and intrigue lies open, all idea ofresponsibility is lost. The most that the public can know is, that the governorclaims the right of nomination: That two out of the considerable number of

    four men can too often be managed without much difficulty And that,from whatever cause it may proceed, a great number of very improperappointments are from time to time made. Whether a governor of this stateavails himself of the ascendant he must necessarily have, in this delicate andimportant part of the administration, to prefer to offices men who are bestqualified for them: Or whether he prostitutes that advantage to theadvancement of persons, whose chief merit is their implicit devotion to hiswill, and to the support of a despicable and dangerous system of personalinfluence, are questions which unfortunately for the community can only bethe subjects of speculation and conjecture. Every mere council ofappointment, however constituted, will be a conclave, in which cabal and

    intrigue will have their full scope.

    ~~~

    c. Constitutional Convention Debates

    Citation: James Madisons Notes on the Constitutional Convention (July 18, 1787),available athttp://consource.org/document/james-madisons-notes-of-the-constitutional-convention-1787-7-18/

    Background: Alexander Hamilton initially suggested that the Senate have a role in theappointments process as a compromise between vesting the appointments

    power exclusively in the executive and involving the entire legislature in theprocess.While the President would have the sole power to appoint the headsor chief officers of Finance, War, and Foreign Affairs, the Senate would beresponsible for approving or rejecting all other officers. Though notimmediately popular, Hamiltons plan was ultimately adopted after NathanielGorham reintroduced the notion of advice and consent as a way for theexecutive to appoint judges in the mode prescribed by the constitution ofMassachusetts. To Hamilton, vesting the appointments power in any singlebranch of government would render the appointments process susceptible to

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    jobbing, a term then used to reference acting for personal profit. SeeOxfordEnglish Dictionary(Online v. 2012), available athttp://www.oed.com/view/Entry/101409?rskey=YEKIBh&result=2&isAdvanced=false#eid(subscription required).

    Quote: Mr. Ghorum moved that the Judges be [nominated and appointed] by the

    Executive, by & with the advice & consent of the 2d branch (&every suchnomination shall be made at least days prior to such appointment]. Thismode he said has been ratified by the experience of 140 years inMassachusetts. If the appt. should be left to either branch of the Legislature,it will be a mere piece of jobbing.

    ~~~

    d. State Ratification Debates

    1. Pennsylvania

    Citation: The Dissent of the Minority of the Convention, The Pennsylvania Packet,December 18, 1787, available athttp://rotunda.upress.virginia.edu/founders/RNCN-02-02-02-0003-0003(subscription required).

    Background: The Dissent of the Minority was signed by members of the Pennsylvaniaratifying convention who voted against the ratification of the Constitution. Inthis passage, the dissenters raise concerns regarding the role of the Senate inthe appointments process.

    Quote: And this great power may be exercised by the president and 10 senators(being two-thirds of 14 which is a quorum of that body). What aninducement would this offer to the ministers of foreign powers to compassby bribery such concessions as could not otherwise be obtained. It is theunvaried usage of all free states, whenever treaties interfere with the positivelaws of the land, to make the intervention of the legislature necessary to givethem operation. This became necessary, and was afforded by the parliamentof Great Britain in consequence of the late commercial treaty between thatkingdom and France. As the senate judges on impeachments, who is to trythe members of the senate for the abuse of this power! And none of thegreat appointments of office can be made without the consent of the senate.

    Such various, extensive, and important powers combined in one body ofmen are inconsistent with all freedom; the celebrated Montesquieu tells us,that when the legislative and executive powers are united in the sameperson, or in the same body of magistrates, there can be no liberty, becauseapprehensions may arise, lest the same monarch or senate should enacttyrannical laws, to execute them in a tyrannical manner.

    ~~~

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    e. Anti-Federalist & Federalist Papers

    Citation: THE FEDERALIST NO. 66 (Alexander Hamilton), available athttp://consource.org/document/the-federalist-no-66-1788-3-8/.

    Background: Here, Hamilton defends the Senates participation in the appointments

    process. Because the Senate merely confirms the presidents nomination, theSenate has little connection to the officeholder. Therefore, should anyimpeachment proceedings against a particular appointee arise, the senatorswould have little connection to the officeholder and would not be biased inevaluating his conduct.

    Quote: It is imagined that they would be too indulgent judges of the conduct ofmen, in whose official creation they had participatedIt will be the office ofthe president to nominate, and with the advice and consent of the senate toappoint. There will, of course be no exertion of choice on the part of thesenate. They may defeat one choice of the executive, and oblige him to makeanother; but they cannot themselves choose-they can only ratify or reject thechoice, of the president. They might even entertain a preference to someother person, at the very moment they were assenting to the one proposed;because there might be no positive ground of opposition to him; and theycould not be sure, if they withheld their assent, that the subsequentnomination would fall upon their own favorite, or upon any other person intheir estimation more meritorious than the one rejected. Thus it could hardlyhappen that the majority of the senate would feel any other complacencytowards the object of an appointment, than such, as the appearances ofmerit, might inspire, and the proofs of the want of it, destroy.

    ~~~

    Citation: THE FEDERALIST NO. 76 (Alexander Hamilton), available athttp://consource.org/document/the-federalist-no-76-1788-4-1/.

    Background: In this essay, Alexander Hamilton stresses the importance of the presidentsleadership role in the appointments process. To Hamilton, the power tonominate was effectively the power to appoint, and a limited legislative rolecontrolled the influence of private interests.

    Quote: But it is easy to shew [sic] that every advantage to be expected from such anarrangement 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 thatofficer, would be avoided. In the act of nomination his judgment alonewould 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, hisresponsibility would be as complete as if he were to make the finalappointment. There can in this view be no difference between nominatingand appointing. The same motives which would influence a proper dischargeof his duty in one case would exist in the other. And as no man could be

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    appointed, but upon his previous nomination, every man who might beappointed would be in fact his choice.

    ~~~

    Citation: THE FEDERALIST NO. 76 (Alexander Hamilton), available at

    http://consource.org/document/the-federalist-no-76-1788-4-1/.

    Background: Here, Hamilton extols the virtues of a system of cooperation between thepresident and the senate inherent in the Appointments Clause. ThoughHamilton highlights that the senates advisory role would check thepresidents power, he also believed that the senates review would be more ofa passive review than an active force in the appointments process.

    Quote: 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 hisnomination would often be overruled. The Senate could not be tempted bythe preference they might feel to another to reject the one proposed; because

    they could not assure themselves that the person they might wish would bebrought forward by a second or by any subsequent nomination. They couldnot even be certain that a future nomination would present a candidate inany degree more acceptable to them: And as their dissent might cast a kindof stigma upon the individual rejected; and might have the appearance of areflection upon the judgment of the chief magistrate; it is not likely that theirsanction would often be refused, where there were not special and strongreasons for the refusal. To what purpose then require the co-operation of theSenate? I answer that the necessity of their concurrence would have apowerful, though in general a silent operation. It would be an excellent checkupon a spirit of favoritism in the President, and would tend greatly to

    preventing the appointment of unfit characters from State prejudice, fromfamily connection, from personal attachment, or from a view to popularity.And, in addition to this, it would be an efficacious source of stability in theadministration. It will readily be comprehended, that a man, who had himselfthe sole disposition of offices, would be governed much more by his privateinclinations and interests, than when he was bound to submit the proprietyof his choice to the discussion and determination of a different andindependent body; and that body an entire branch of the Legislature. Thepossibility of rejection would be a strong motive to care in proposing.-Thedanger to his own reputation, and, in the case of an elective magistrate, to hispolitical existence, from betraying spirit of favoritism, or an unbecoming

    pursuit of popularity, to the observation of a body, whose opinion wouldhave great weight in forming that of the public, could not fail to operate as abarrier to the one and to the other.

    ~~~

    Citation: THE FEDERALIST NO. 77 (Alexander Hamilton), available athttp://consource.org/document/the-federalist-no-77-1788-4-2/.

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    Background: Here again, Hamilton strongly defends vesting the appointments powerjointly in the president and the senate. To Hamilton, each branchsnegative, or power to restrain the other, ensures that neither exerts toomuch influence over the appointments process while still maintaining theseparation of powers between the executive and the legislature. Just as it is

    unlikely for the senate to influence whom the president nominates, thepresident will rarely have enough personal interest in the appointment toexert his influence over the senate.

    Quote: To this union of the senate with the president, in the article of appointments,it has in some cases been suggested, that it would serve to give the presidentan undue influence over the senate; and in others, that it would have anopposite tendency; a strong proof that neither suggestion is true. To state thefirst in its proper form is to refute it. It amounts to this-The president wouldhave an improper influence over the senate; because the senate would havethe power of restraining him. This is an absurdity in terms. It cannot admitof a doubt that the intire [sic] power of appointment would enable him much

    more effectually to establish a dangerous empire over that body, than a merepower of nomination subject to their controul [sic]. Let us take a view of theconverse of the proposition-"The senate would influence the executive"-As Ihave had occasion to remark in several other instances, the indistinctness ofthe objection forbids a precise answer. In what manner is this influence to beexerted? In relation to what objects? The power of influencing a person, inthe sense in which it is here used, must imply a power of conferring benefitupon him. How could the senate confer a benefit upon the president by themanner of employing their right of negative upon his nominations? If it besaid they might sometimes gratify him by an acquiescence in a favoritechoice, when public motives might dictate a different conduct; I answer that

    the instances in which the president could be personally interested in theresult, would be too few to admit of his being materially affected by thecompliances of the senate.

    ~~~

    Citation: THE FEDERALIST NO. 77 (Alexander Hamilton), available athttp://consource.org/document/the-federalist-no-77-1788-4-2/.

    Background: In other Federalist papers, Hamilton advocated for the inclusion of theSenate in the appointments process. However, Hamilton stronglycondemned the inclusion of the House of Representatives in the process,

    believing it would create inefficiencies and instability within the government.Quote: A body so fluctuating, and at the same time so numerous, can never be

    deemed proper for the exercise of that power. Its unfitness will appearmanifest to all, when it is recollected that in half a century it may consist ofthree or four hundred persons. All the advantages of the stability, both of theexecutive and of the senate, would be defeated by this union; and infinitedelays and embarrassments would be occasioned. The example of most ofthe states in their local constitutions, encourages us to reprobate the idea.

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    ~~~

    Citation: A Farmer, of New-Jersey, Observations on Government, November 3, 1787,available at http://rotunda.upress.virginia.edu/founders/RNCN-02-19-02-0002-0066

    Background: Written by John Stevens, Jr., this essay argues that it is improper for theSenate to vote on executive appointments, because they are to sit injudgment in cases of impeachment of the President and his inferior officers.

    Quote: The President should have the chusing [sic] of his own advisers, as he will ofconsequence be the more responsible.But at any rate, the Senate are veryimproper for this office, as they are to sit as judges in case of animpeachment of the President.

    ~~~

    f. Early American Treatises and Pamphlets

    Citation: James Madison, Letters of Helvidius, No. II, available athttp://press-pubs.uchicago.edu/founders/documents/a2_2_2-3s15.html.

    Background: The Helvidius-Pacificus debate occurred between Alexander Hamilton andJames Madison and concerned the structure of the United Statesgovernment. Writing following Washingtons 1793 Proclamation ofNeutrality to the war between Britain and France, Helvidius (Madison)contested that the President did not have the unilateral authority to issue thisproclamation. Helvidius letters were a direct response to Alexander

    Hamilton, writing under the name Pacificus, defending WashingtonsProclamation. This debate highlighted the ongoing tension over the structureof the government. Here, Madison explains the limitations on jointly vestingpower in different branches of government. This, again, sheds light onHamiltons views on the presidents leadership role in the appointmentsprocess. By participating in the process, the Senate is performing anexecutive act and can therefore never act without the President first initiatingthe procedure. The Senate would have no role in the appointments processwithout the Presidents initial nomination.

    Quote: Legislative power may be concurrentlyvested in different legislative bodies.Executive powers may be concurrently vested in different executivemagistrates. In legislative acts the executive may have a participation, as inthe qualified negative on the laws. In executive acts, the legislature, or at leasta branch of it, may participate, as in the appointment to offices.Arrangements of this sort are familiar in theory, as well as in practice. But anindependent exercise of an executive act by the legislature alone,or ofa legislativeact by the executive alone, one or other of which must happen inevery case where the same act is exerciseable [sic] by each, and the latter ofwhich would happen in the case urged by the writer, is contrary to one of the

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    first and best maxims of a well-organized government, and ought never to befounded in a forced construction, much less in opposition to a fair one.Instances, it is true, may be discovered among ourselves, where this maximhas not been faithfully pursued; but being generally acknowledged to beerrors, they confirm, rather than impeach the truth and value of the maxim.

    It may happen also, that different independent departments, the legislativeand executive, for example, may, in the exercise of their functions, interpretthe constitution differently, and thence lay claim to the same power. Thisdifference of opinion is an inconvenience not entirely to be avoided. Itresults from what may be called, if it be thought fit, a concurrentright toexpound the constitution. But this speciesof concurrence is obviously andradically different from that in question. The former supposes theconstitution to have given the power to one department only; and the doubtto be, to which it has been given. The latter supposes it to belong to both;and that it may be exercised by either or both, according to the course ofexigencies.A concurrent authority in two independent departments, to perform the

    same function with respect to the same thing, would be as awkward inpractice, as it is unnatural in theory.

    ~~~

    Citation: 2 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITEDSTATES 1530-31, available athttp://www.constitution.org/js/js_337.htm.

    Background: Joseph Story highlights that the Framers included the Senate in theappointments process as a precautionary measure to ensure the president didnot exert too much influence over the appointments process.

    Quote: But, though these general considerations might easily reconcile us to thechoice of vesting the power of appointment exclusively in the president, inpreference to the senate or house of representatives alone, the patronage ofthe government and the appointments to office are too important to thepublic welfare, not to induce great hesitation in vesting them exclusively inthe president. The power may be abused; and, assuredly, it will be abused,except in the hands of an executive of great firmness, independence,integrity, and public spirit. It should never be forgotten, that in a republicangovernment offices are established and are to be filled, not to gratify privateinterests and private attachments; not as means of corrupt influence orindividual profit; not for cringing favorites or court sycophants; but for

    purposes of the highest public good; to give dignity, strength, purity, andenergy to the administration of the laws. It would not, therefore, be a wisecourse to omit any precaution, which, at the same time that it should give tothe president a power over the appointments of those who are, inconjunction with himself, to execute the laws, should also interpose a salutarycheck upon its abuse, acting by way or preventative as well as a remedy.

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    Happily this difficult task has been achieved by the constitution. Thepresident is to nominate, and thereby has the sole power to select for office;but his nomination cannot confer office, unless approved by a majority ofthe senate. His responsibility and theirs is thus complete and distinct.

    ~~~

    Citation: 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITEDSTATES 750, available athttp://www.constitution.org/js/js_310.htm.

    Background: Here, Story explains that the Senates involvement in the appointmentsprocess does not prevent a conflict of interest should any potentialimpeachment proceedings arise. Story highlights that the Senates advice andconsent role in the appointments process is secondary to the presidentsinitial nomination; because the Senate plays so minor a role in theappointment, it is unlikely that Senators will feel any strong attachment to theappointee. Story also highlights that Art. 1, 3, cl. 2, providing for staggeredsenatorial elections, made it unlikely that the same group of senators initiallyinvolved in the appointment would still be in Congress when anyimpeachment proceedings arose.

    Quote: The next objection is, that the power is not efficient or safe in connexion[sic] with the agency of the senate in appointments. The argument is, thatsenators, who have concurred in an appointment, will be too indulgentjudges of the conduct of the men, in whose efficient creation they haveparticipated.The same objection lies with equal force against allgovernments, which entrust the power of appointment to any persons, whohave a right to remove them at pleasure. It might in such cases be urged, thatthe favouritism [sic] of the appointor [sic] would always screen the

    misbehaviour [sic] of the appointees. Yet no one doubts the fitness ofentrusting such a power; and confidence is reposed, and properly reposed, inthe character and responsibility of those, who make the appointment. Theobjection is greatly diminished in its force by the consideration, that thesenate has but a slight participation in the appointments to office. Thepresident is to nominate and appoint; and the senate are called upon merelyto confirm, or reje