When the delegates debated how federal judges should be selected, their deliberations revealed a lot about what they expected from the government bodies that might do the selecting: whether Congress, the executive, or the Senate. But their discussions also revealed a good deal about what they expected from the body that would be selected: the federal judges whose appointments (however made) might last a lifetime. The Virginia Plan had proposed that members of the judiciary would “be chosen by the National Legislature.” It is not clear why that mode was first proposed, since almost no one, including Madison, seemed to favor it. When the subject was first debated on June 5, the proposal that the whole legislature select judges was immediately assailed. Wilson argued that “intrigue, partiality, and concealment” were always the result when large bodies were entrusted with a choice of this consequence. He preferred to vest the selection of judges in a single person, and the chief executive would be the best person for the job. Madison agreed that numerous bodies were subject to all the objections that Wilson named, but he also disliked an appointment by the executive.
When no person or body was brought forward as obviously suited for selecting the ablest judges, the Committee of the Whole merely postponed the question. In June, at the urging of Madison, the delegates decided briefly to vest the power of appointing judges in the hands of the Senate, but the clause was reconsidered by the Convention on July 18, when Gorham expressed his misgivings about the Senate’s capacity to make the best choice. Although the Senate was preferable to the whole House, “he thought even that branch too numerous, and too little personally responsible, to insure a good choice.” He suggested the mode that had worked so well in his own state of Massachusetts: “that the judges be appointed by the executive, with the advice and consent of the second branch.”
Before the delegates had an opportunity to debate Gorham’s proposal, Wilson proposed instead that the judges be appointed by the executive alone, and the Convention proceeded to consider those two alternatives: a choice by the Senate or by the executive. In addition to the question they had already been considering—which body would most likely make a fit choice for the requisite qualifications for a judge—the Framers also began to evince a concern that the judges who were ultimately selected must represent a true geographic diversity. The Connecticut Compromise had moved the ground of the debate; now, a choice by the Senate meant a choice by a majority of states rather than a majority of citizens. Luther Martin thought that the Senate would make the best choice, because its members were “taken from all the states.” Mason likewise began to foresee a problem with geographical constriction if the executive were to make all the judicial appointments. By remaining at “the seat of government” for a considerable period, the executive “would insensibly form local and personal attachments,” and his choice of nominations would likely only fall on those persons he knew. Good candidates from other parts of the country would be neglected.
Nobody denied that judges ought to come from various locales, but the debate above shows that there was some disagreement about the best mode for guaranteeing geographic diversity. The Supreme Court would sometimes be asked to decide cases that pitted the interests of particular states or regions against each other. If all the judges were from a concentrated region or only particular states, then there would always be a cloud of suspicion (whether or not the suspicion was justified) that the courts’ decisions were not impartial.
Although the concern for geographical diversity was widely shared, it did not override the concern for finding a mode of selection that would be most likely to favor the merits of a good judge, regardless of physical locale. Madison began to see the advantages of Gorham’s suggestion for a choice that involved the joint wisdom of two branches of government in selecting the third. Even if an appointment by the executive were to require “the concurrence of one third at least of the second branch,” this mode “would unite the advantage of responsibility in the executive, with the security afforded in the second branch against any incautious or corrupt nomination by the executive.” Those who wanted to exclude the executive from any involvement in the selection process tended to deny that there were any advantages to be gained from an appointment by a single individual. Sherman argued that the Senate “would be composed of men nearly equal to the executive,” and when they pooled their collective talents and information, they would have “more wisdom” than a single executive. Gunning Bedford thought that “the responsibility of the executive, so much talked of, was chimerical,” because his bad choices could in no way be punished. Gorham held firm to his position that the choice by a single individual was more responsible: “He did not mean that he would be answerable under any other penalty than that of public censure, which with honorable minds was a sufficient one.”
The delegates first had to decide whether the executive alone should select judges, and that choice was a clear loser: 2-to-6. Gorham then moved to have the judges “nominated and appointed by the executive, by and with the advice and consent of the second branch.” That motion was more popular, but it still lost on a tied vote. Madison tried for a slight alteration to Gorham’s motion: that the executive nominate the judges and the Senate would have the opportunity to veto the choice with a two-thirds dissent. Although it was Madison who had initially proposed that the Senate should choose the judges, he had clearly been won over by the mode of selection suggested by Gorham (perhaps because the Senate now represented the states equally).
What followed next was a spat over who would really be acquainted with the most “fit characters” when it came time to choose judges. Morris agreed with Madison and Gorham that the executive would have better information about characters, but Charles Pinckney, Ellsworth, and Gerry all gave it as their opinion that the Senate would have the most comprehensive knowledge of the proper characters for the federal judges. Members also disputed whether giving the power to confirm in the Senate—especially if it required a two-thirds majority to overturn the president’s choice—would offer any real security against bad appointments from the executive. Ellsworth believed that the Senate’s “right to supersede his nomination will be ideal only. A nomination under such circumstances will be equivalent to an appointment.” And Mason argued that even if the Senate could reject the nomination with a simple majority, “the appointment was substantially vested in” the executive. He worried that the Senate would be too yielding to “the first nominations” of the executive. By the end of the day’s debates, the naysayers had their way. Gorham’s suggestion, which had been modified by Madison, went down to defeat, 3-to-6; and the Senate was once again entrusted with the job of selecting judges, 6-to-3.
Over the course of the next few weeks, the power to appoint federal judges remained in the hands of the Senate, yet some delegates were still dissatisfied with the choice. On August 23 it was decided to send the clause which granted the Senate some of its most important powers to a committee for revision. On September 4, the Committee of Postponed Matters recommended the mode of selection that had already been rejected more than once in the Convention: the president should nominate, and “by and with the advice and consent of the Senate, shall appoint … judges of the Supreme Court.” When the clause was debated on September 7, there were some dissenters, but there was surprisingly little debate. Clearly, the Framers wanted to decide the remaining business quickly and go home.
When the Committee’s proposal came up for a vote, the Framers unanimously accepted it. The president, they believed, was the most “national” officeholder; he would be least swayed by geographical prejudices; and he could be expected to know “fit characters” from all over the union. Yet the Framers recognized that there was always a danger when placing so much power in the hands of any single person: he might misuse this authority to reward cronies or to trade favors. For this reason, the Senate was joined in the appointment. And the Senate’s role in this business was by no means an afterthought nor was this body meant to act as a rubber stamp; indeed, there were always far more advocates for a choice by the Senate alone than by the president alone. A concurrence by the senators was meant to ensure that the president’s choice was guided by no other motive than a concern that “fit characters,” taken from geographically diverse parts of the country, sit on the bench of the high court.