Someone wrote:
This means almost all our Judges have been appointed by conservative Republicans (Reagan, Bush 41, and Bush 43). These Judges are of no mind to rule against DOMA regardless of the Declaration (where the “all men are created equal”) line is, or the Constitution (which guarantees all citizens equality under law). Who you vote for does have an enormous impact on your own lives.
Someone else replied:
Well, why can the People not vote for the Supreme Court, too? It seems like an enormous BIAS to allow the President to choose the Supreme Court using his own innate biases, too! What sense does that make? Surely the Founding Fathers were smarter than *that*!
I replied:
They did think about that.
I’ve been reading “The Federalist Papers,” which is a series of essays that James Madison, Alexander Hamilton, and John Jay wrote to encourage ratification of the Constitution. They went over all the provisions and explained how each one would work, giving pros and cons over other alternatives.
In numbers 76 and 77, Hamilton writes about the appointment of officers of the government. This includes Supreme Court justices, other federal judges, department heads, and other high officials. He outlines three alternatives: “The power of appointment…ought either to be vested in a single man, or in a select assembly of a moderate number, or in a single man with the concurrence of such an assembly. The exercise of it by the people at large will be readily admitted to be impractical; as waiving every other consideration, it would leave them little time to do anything else.”
The State of Iowa did not take this advice for its own officials. How much time did you put into deciding who to vote for for Secretary of State or Secretary of Agriculture?
Hamilton goes on to consider the three practical possibilities.
- Appointment by the President alone can encourage careful consideration and judgment, because the President would know that nobody else could override his decision and everyone will know where to lay the blame for a bad choice. On the other hand, placing the power in one person’s hands could lead to enshrining the one person’s bias (as you point out).
- Having the Senate or a small committee make appointments removes the concentration of too much power in one person’s hands. However, each person involved brings their own biases, which may add up rather than cancel each other out. Appointments could be chosen according to who can keep together a majority coalition rather than who is the best for the job. Or factions could trade off by approving one side’s choice for one position and the other side’s choice for the next one. If a bad choice is made, all those involved can point fingers at each other because it is not clear who to blame. Hamilton relates some bad experiences from his home state of New York, where appointments were made by the governor and a few councilors meeting in secret.
- The third alternative is to have the President make the choice, but subject to approval by the Senate. Here the appointees are chosen by one person, who will be encouraged to use careful judgment and discretion, and the people will know who is responsible for a bad choice. Thus we have the advantages of the first alternative. But the Senate can reject an appointee they believe is unwise, so we have the benefits of the second alternative. Since the Senate can only approve or reject, there is not the scope for bargaining and horsetrading, because they don’t know whether the next nomination will be any more to their liking.
Further, this is part of an overall scheme in which the people involved in different parts of the government are chosen in different ways and at different times. The hope is that this will result in people having different interests, and that even if some of them become corrupted or despotic, they won’t all go corrupt at the same time.
So the plan includes:
- House of representatives, elected directly by the people in each district, every two years.
- Senate, originally chosen by the state legislatures, for terms of six years. This was intended to safeguard the interests of every state and to provide a defense against federal encroachments onto the rights of states and the power of state governments. It was also intended to insulate the Senate from popular but transient feelings among a majority of the people that might disregard the rights and interests of minorities. Early in the 20th century this was changed to direct election, and I believe this is one of the causes for the expanding scope of federal government power we have seen over the past 90 years. The longer terms and the election from each state at large still make the Senate a little different from the House.
- President is elected indirectly. The people of each state choose electors, who are not otherwise part of the government, to meet in their state capitals and discuss who would be the best President, and then cast their votes accordingly. Almost immediately this developed into the system we have today, where the electors are pre-pledged to support a particular candidate for President. But it still gives the President an independent base of support, unlike countries with a parliamentary system, where the leader of the majority party in parliament becomes the prime minister.
- Department heads are nominated by the President and confirmed by the Senate. The President can ask for their resignation at any time.
- Supreme Court and other judges are nominated by the President and confirmed by the Senate. They serve for good behavior, which means for life unless they do something bad enough to be impeached.
That’s this week’s civics lesson.