Channels, Fall 2019

Page 14 Wilt • It Wasn’t Supposed to be Easy would allow each state’s legislatures to elect two senators from each state. The people would elect The House of Representatives every two-years and would be based solely on representation. These developments had profound impacts on the consensus-building for the appointment power to the Supreme Court. As August came, the Committee of Eleven met and proposed changes to the Constitution. Appointment by the executive and by and with the advice of the Senate came more naturally as an acceptable proposition to provide a strong check and balance between the executive and the legislature after the approval of the bicameral legislation with a House and a Senate. On September 7, the delegates officially approved the President’s and Senate’s shared appointment powers for Supreme Court Justices (Harris, 24). The passage was approved as the President was given the power to make recess appointments (Harris, 24). Massachusetts’ Advice and Consent Model The Founders used Massachusetts as the model for the Appointments Clause when they were reviewing the appointment power. Chiefly, Nathaniel Gorham referred to the Massachusetts Constitution as the leading document for influence in securing the dual-appointment method. The Appointments Clause for the Massachusetts Constitution states, “All judicial officers, [the attorney general], the solicitor-general, [all sheriffs], coroners, [and registers of probate], shall be nominated and appointed by the governor, by and with the advice and consent of the council” (Massachusetts Constitution). Clearly, the language is similar to the Appointments Clause within the U.S. Constitution; however, the council advises and consents to the nominee instead of the legislature. In order for the Massachusetts’ governor and council to work through the advice and consent inclusion, the governor appointed the judicial nominee, and within one to three weeks, the council had responded (White 136). The council only recorded the appointments in which it advised and consented to, excluding the ones they did not confirmed (White 137). This is an interesting component to wrestle with since the Senate from its inception has publicly recorded the Supreme Court nomination votes. Now, some votes were recorded by voice and considered with unanimous support. Even Supreme Court nominees who were rejected were publicly declared. Regardless, in both scenarios the Founders acknowledged a Senate that would be actively involved in reviewing the Supreme Court nominee, offering advice on the nominee or potential candidates to nominate, and eventually approving or rejecting the nominee. The Massachusetts advice and consent model supports this notion. Throughout the process, certain items were pertinent to understanding advice and consent. First, the Founders seemed to collectively agree upon what advice and consent meant without the necessity to debate its inherent meaning. Such a common understanding probably resulted from their prior experiences in recording the Massachusetts’ council when advising the governor on judicial appointments. Second, the Founders merged the Virginia Plan and the New Jersey Plan in the Committee on Detail. Such a compromise established the election of senators via the state legislatures. Hence, the Founders believed this would be a wise and necessary check against both the president in the appointment power over Supreme Court Justices among other areas of checks and balances, as well as a check against the passions of the people. One should also remember that the final plan that was eventually adopted was first proposed by Alexander Hamilton. Hamilton’s belief in a strong, unitary executive contrasted differently from the plan adopted at the Constitutional Convention. His viewpoints will be explained through his