Channels, Fall 2019

Channels • 2019 • Volume 4 • Number 1 Page 21 Convention delegates, prominent members in American society, and even early U.S. presidents— discussed the appointment power process that afforded key insight into the Senate’s advice and consent role. President George Washington wrote that he believed Thomas Jefferson and John Jay concurred with his assertion of executive dominance within the appointment power. He recorded his thoughts in his diary, saying, “The Senate’s powers “extend no farther than to an approbation or disapprobation of the person nominated by the President, all the rest being Executive and vested in the President by the Constitution” (McGinnis). Washington assumes here that the Senate plays a more limited role in the context of appointment power and believes that the Senate should limit itself to only acceptance or rejection of the nominee. After submitting the first treaty for consideration by the U.S. Senate under its ‘Advice and Consent’ role for the Jay Treaty, Washington wrote the following entry in his journal on August 8, 1789, which reads, “Neither of which might be agreeable; and the latter improper; for as the President has a right to nominate without assigning his reasons, has the Senate a right to dissent without giving theirs” (Harris 39). Granted, this was in response to a treaty ratification which is different from the appointment power; however, it should be noted that the Senate’s advice and consent role was not too distinguishable in treaty ratification or judicial confirmation. Therefore, it is safe to assume that President Washington understood their critical role of confirmation or rejection was similar in both scenarios, and he knew that their ability to reject a nominee or treaty would be the prerogative of the Senate. He assumed an active Senate model that would “dissent” on the nomination by a vote, which matches much of what the other Founders understood at the time. James Madison spoke on the House floor concerning the issue of removal power because some contested the executive alone had the authority to remove while others moved to involve the Senate since it was a part of the appointment power. Concerning the notion that the Senate should be involved, Madison stated, “If the constitution had not qualified the power of the president in appointing to office, by associating the senate with him in that business, would it not be clear that he would have the right by virtue of his executive power to make such appointment?” (Selected Writings of James Madison 180). Though he recognizes the advice and consent of the Senate as a shared power in the appointment power, Madison expresses that removal power is not of the same mold. Suffice it to say that Madison assumes an active Senate involved in the appointment process of the judicial nominees to the Supreme Court. When it comes to appointing individuals during recess appointments, he writes that “[the President] can place no man in the vacancy whom the senate shall not approve” (Selected Writings of James Madison 184). Again, Madison is assuming here an active Senate that would hold at least a vote on the nominee for the Supreme Court. James Iredell, a former Supreme Court Justice and prominent North Carolina delegate to the Constitutional Convention, wrote about the advice and consent role of the Senate: As to offices, the Senate has no other influence but a restraint on improper appointments. The President proposes such a man for such an office. The Senate has to consider upon it. If they think him improper, the President must nominate another, whose appointment ultimately again depends upon the Senate. (McGinnis) One could argue that this refutes the pre-nomination role many considered the Senate to have for the Supreme Court nominations. However, one could also argue that the Senate would assume the prerogative of telling the president of an individual or type of individual that the Senate—or select Senators, Senate Majority leader, or Senate Judiciary Committee members—would support.