Channels, Fall 2019

Page 12 Wilt • It Wasn’t Supposed to be Easy leadership within the appointments process by requiring the initial action of choice from the President. Second, the Framers gave the Senate the advice and consent function with the key words “by and with” (Appointments Clause). Here, the Founders indicated that the Senate, “by and with” its advice and consent “shall appoint” — or jointly appoint — the proposed candidate (Appointments Clause). In other words, the Senate and President, together, were expected to collaborate their efforts in evaluating and approving the candidate for the office under consideration. However, that the Founders did not place a ‘shall’ in the advice and consent portion for the Senate. This has profound implications for the Senate’s advice and consent role. The Founders knew how to require action from a specific branch of government. The fact that they chose not to require such action from the Senate indicates a level of discretion that is afforded to the Senate in applying the meaning of the text practically. One can reject the idea that the Senate is constitutionally obligated to vote on the Supreme Court candidate’s nomination, thereby answering one of the driving questions of this research paper. However, this does not exactly entitle the Senate to a passive and deferential role. Quite the contrary. The Founders expected, within the constitutional framework, for the Senate to be able to develop its own system of rules, procedures, customs, and traditions that would govern the institution. Such an understanding can be referenced in Article I, Section 5: “Each House may determine the Rules of its Proceedings….” In affording loose language for the Appointments Clause, the Framers understood that the Senate would determine its own rules in how it chose to proceed on Supreme Court confirmations. Therefore, the Framers afforded the Senate certain discretionary powers within the appointment power itself to act according to its own rules and procedures on various appointments, including the Supreme Court. However, one must note that the Framers, in assuming man’s depravity, knew that various issues would arise with such discretion in the Senate body on appointments. Therefore, to ascertain whether the Senate should serve an active or passive role, one must look beyond the scope of the text itself to understand the Framers’ intentions. The Appointments Clause drafting at the Constitutional Convention of 1787, in the Federalist Papers, in other manuscripts and letters by the Founders, and in the early practice can ascertain the Framers’ intentions. The Constitutional Convention Proceedings Thankfully, the Framers provided succeeding generations with a transcript of the debates and proceedings of the Constitutional Convention in 1787. James Madison – the author of the U.S. Constitution – recorded the proceedings of the Convention. Not much of the literature has surveyed what implications those proceedings have on the advice and consent function. Therefore, this portion of the paper will briefly review the two groups, the compromise, and the assumptions underpinning the development of the Appointment Clause. As synthesized by AdamWhite, “One group of delegates, led by James Wilson, Nathaniel Gorham, Alexander Hamilton, and Gouverneur Morris, favored control of appointments by a strong executive” (110). On the other hand, “Charles Pinckney, Luther Martin, George Mason, Roger Sherman, Oliver Ellsworth, and John Rutledge favored legislative control of appointments” (White, 110-111). These two groups had convincing arguments for each. Executive control over appointments would result in unity of thought, accountability, and transparency in who is at fault