For the battle that’s begun over President Obama’s U.S.
Supreme Court (SCOTUS) nomination (Judge Merrick Garland), Founding Father (Alexander
Hamilton) vindicates the action.
Hamilton knew that Americans would find their protection
from would-be kings in the wisdom of the Senate. He made this point in Federalist No. 69 – one of
the essays he wrote in 1788 under the pen name Publius. The topic of Federalist No. 69 is the “real
character of the executive.” It makes it
clear that in filling the seat once held by Justice Antonin Scalia, President
Obama is at the complete mercy of the Senate — and should be. It was Hamilton’s aim in the Federalist
columns, which he wrote with James Madison and John Jay, to convince New
Yorkers to ratify the U.S. Constitution. One of the things New Yorkers feared was that
a president might take on kingly powers … like that of the tyrant King George
III. Hamilton wrote of judges that what
the president had was the power “to nominate, and, WITH THE ADVICE AND CONSENT
OF THE SENATE, to appoint.” (It was
Hamilton who put these words in all caps.) He went on to contrast the powers of the
presidency created in the Constitution with those of “the King of Great
Britain.” The king, Hamilton wrote, “is
emphatically and truly styled the fountain of honor,” by which he meant something
like the original source of power. “He
not only appoints to all offices, but can create offices. He can confer titles of nobility at pleasure.”
What Hamilton stressed was what he called “a great
inferiority in the power of the President, in this particular, to that of the
British king.” Nor, he went on, was the
presidential power even “equal to that of the governor of New York.”
At the time in New York, the appointment power was held by a
council that included the governor and four state senators. Not only could New York’s governor nominate a
state judge, but he was “ENTITLED to a casting vote in the appointment.” (Again, the all-caps are Hamilton’s.) And then the famous words: “In the national
government, if the Senate should be divided, no appointment could be made.” This is precisely what Hamilton was marking as
a constitutional VIRTUE (all-caps are mine).
Hamilton went on to sharpen the contrast with New York. In the state’s government, he warned, “if the
council should be divided, the governor can turn the scale, and confirm his own
nomination.”
Today, we are in precisely the circumstances in which
Hamilton foresaw that no appointment could be made. The Founders understood that the ability of
the states, via their senators, to check a nomination was one of the
Constitution’s attractions. And why not?
They were revolutionary men. They were taking down a monarchy. They did not want to vest a president with
kingly powers of appointment. They
didn’t require the Senate to hold even so much as an up-or-down-vote … as President
Obama and the Democrats are calling for in the nomination of Judge Garland.
Hamilton contrasted the mode of appointment by the president
and “an entire branch of the national legislature” with the “privacy in the
mode of appointment by the governor of New York.” The governor, he sneered, was “closeted in a
secret apartment with at most four, and frequently with only two persons.” So “the power of the chief magistrate of this
State, in the disposition of offices, must, in practice, be greatly superior to
that of the Chief Magistrate of the Union.”
With such assurance that the president could be blocked by
the Senate, New York ratified the U.S. Constitution. And that’s what Obama and Garland are up
against.
No one knows it better than the justices Garland aspires to
join. They understand full well that the
Founders intended there to be circumstances where, absent an intervening
election, no appointment to the SCOTUS could be made. They know that the states wouldn’t have
ratified the Constitution if this had not been the case. They know that the Founders were prepared to
let the king, the president, and the Devil himself take the rear.
Rev. Dr.
Kenneth L. Beale, Jr.
Chaplain
(Colonel-Ret), U.S. Army
Pastor,
Ft. Snelling Memorial Chapel
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