Don't argue with me - argue with him.
By krempasky Posted in The Courts — Comments (38) / Email this page » / Leave a comment »
Ah yes, Federalist 76. One of my favorite. Tends to be on my mind these days...on the advice and consent function of the Senate. In full beneath the fold.
"It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family
connection, from personal attachment, or from a view to popularity."
FEDERALIST No. 76
The Appointing Power of the Executive
From the New York Packet.
Tuesday, April 1, 1788.HAMILTON
To the People of the State of New York:
THE President is "to nominate, and, by and with the advice and consent
of the Senate, to appoint ambassadors, other public ministers and
consuls, judges of the Supreme Court, and all other officers of the
United States whose appointments are not otherwise provided for in the
Constitution. But the Congress may by law vest the appointment of such
inferior officers as they think proper, in the President alone, or in
the courts of law, or in the heads of departments. The President shall
have power to fill up all vacancies which may happen during the recess
of the Senate, by granting commissions which shall expire at the end of
their next session."It has been observed in a former paper, that "the true test of a good
government is its aptitude and tendency to produce a good
administration." If the justness of this observation be admitted, the
mode of appointing the officers of the United States contained in the
foregoing clauses, must, when examined, be allowed to be entitled to
particular commendation. It is not easy to conceive a plan better
calculated than this to promote a judicious choice of men for filling
the offices of the Union; and it will not need proof, that on this point
must essentially depend the character of its administration.It will be agreed on all hands, that the power of appointment, in
ordinary cases, ought to be modified in one of three ways. It ought
either to be vested in a single man, or in a select assembly of a
moderate number; or in a single man, with the concurrence of such an
assembly. The exercise of it by the people at large will be readily
admitted to be impracticable; as waiving every other consideration, it
would leave them little time to do anything else. When, therefore,
mention is made in the subsequent reasonings of an assembly or body of
men, what is said must be understood to relate to a select body or
assembly, of the description already given. The people collectively,
from their number and from their dispersed situation, cannot be
regulated in their movements by that systematic spirit of cabal and
intrigue, which will be urged as the chief objections to reposing the
power in question in a body of men.Those who have themselves reflected upon the subject, or who have
attended to the observations made in other parts of these papers, in
relation to the appointment of the President, will, I presume, agree to
the position, that there would always be great probability of having the
place supplied by a man of abilities, at least respectable. Premising
this, I proceed to lay it down as a rule, that one man of discernment is
better fitted to analyze and estimate the peculiar qualities adapted to
particular offices, than a body of men of equal or perhaps even of
superior discernment.The sole and undivided responsibility of one man will naturally beget a
livelier sense of duty and a more exact regard to reputation. He will,
on this account, feel himself under stronger obligations, and more
interested to investigate with care the qualities requisite to the
stations to be filled, and to prefer with impartiality the persons who
may have the fairest pretensions to them. He will have fewer personal
attachments to gratify, than a body of men who may each be supposed to
have an equal number; and will be so much the less liable to be misled
by the sentiments of friendship and of affection. A single well-directed
man, by a single understanding, cannot be distracted and warped by that
diversity of views, feelings, and interests, which frequently distract
and warp the resolutions of a collective body. There is nothing so apt
to agitate the passions of mankind as personal considerations whether
they relate to ourselves or to others, who are to be the objects of our
choice or preference. Hence, in every exercise of the power of
appointing to offices, by an assembly of men, we must expect to see a
full display of all the private and party likings and dislikes,
partialities and antipathies, attachments and animosities, which are
felt by those who compose the assembly. The choice which may at any time
happen to be made under such circumstances, will of course be the result
either of a victory gained by one party over the other, or of a
compromise between the parties. In either case, the intrinsic merit of
the candidate will be too often out of sight. In the first, the
qualifications best adapted to uniting the suffrages of the party, will
be more considered than those which fit the person for the station. In
the last, the coalition will commonly turn upon some interested
equivalent: "Give us the man we wish for this office, and you shall have
the one you wish for that." This will be the usual condition of the
bargain. And it will rarely happen that the advancement of the public
service will be the primary object either of party victories or of party
negotiations.The truth of the principles here advanced seems to have been felt by the
most intelligent of those who have found fault with the provision made,
in this respect, by the convention. They contend that the President
ought solely to have been authorized to make the appointments under the
federal government. But it is easy to show, that every advantage to be
expected from such an arrangement would, in substance, be derived from
the power of nomination, which is proposed to be conferred upon him;
while several disadvantages which might attend the absolute power of
appointment in the hands of that officer would be avoided. In the act of
nomination, his judgment alone would be exercised; and as it would be
his sole duty to point out the man who, with the approbation of the
Senate, should fill an office, his responsibility would be as complete
as if he were to make the final appointment. There can, in this view, be
no difference between nominating and appointing. The same motives which
would influence a proper discharge of his duty in one case, would exist
in the other. And as no man could be appointed but on his previous
nomination, every man who might be appointed would be, in fact, his
choice.But might not his nomination be overruled? I grant it might, yet this
could only be to make place for another nomination by himself. The
person ultimately appointed must be the object of his preference, though
perhaps not in the first degree. It is also not very probable that his
nomination would often be overruled. The Senate could not be tempted, by
the preference they might feel to another, to reject the one proposed;
because they could not assure themselves, that the person they might
wish would be brought forward by a second or by any subsequent
nomination. They could not even be certain, that a future nomination
would present a candidate in any degree more acceptable to them; and as
their dissent might cast a kind of stigma upon the individual rejected,
and might have the appearance of a reflection upon the judgment of the
chief magistrate, it is not likely that their sanction would often be
refused, where there were not special and strong reasons for the
refusal.To what purpose then require the co-operation of the Senate? I answer,
that the necessity of their concurrence would have a powerful, though,
in general, a silent operation. It would be an excellent check upon a
spirit of favoritism in the President, and would tend greatly to prevent
the appointment of unfit characters from State prejudice, from family
connection, from personal attachment, or from a view to popularity. In
addition to this, it would be an efficacious source of stability in the
administration.It will readily be comprehended, that a man who had himself the sole
disposition of offices, would be governed much more by his private
inclinations and interests, than when he was bound to submit the
propriety of his choice to the discussion and determination of a
different and independent body, and that body an entier branch of the
legislature. The possibility of rejection would be a strong motive to
care in proposing. The danger to his own reputation, and, in the case of
an elective magistrate, to his political existence, from betraying a
spirit of favoritism, or an unbecoming pursuit of popularity, to the
observation of a body whose opinion would have great weight in forming
that of the public, could not fail to operate as a barrier to the one
and to the other. He would be both ashamed and afraid to bring forward,
for the most distinguished or lucrative stations, candidates who had no
other merit than that of coming from the same State to which he
particularly belonged, or of being in some way or other personally
allied to him, or of possessing the necessary insignificance and pliancy
to render them the obsequious instruments of his pleasure.To this reasoning it has been objected that the President, by the
influence of the power of nomination, may secure the complaisance of the
Senate to his views. This supposition of universal venalty in human
nature is little less an error in political reasoning, than the
supposition of universal rectitude. The institution of delegated power
implies, that there is a portion of virtue and honor among mankind,
which may be a reasonable foundation of confidence; and experience
justifies the theory. It has been found to exist in the most corrupt
periods of the most corrupt governments. The venalty of the British
House of Commons has been long a topic of accusation against that body,
in the country to which they belong as well as in this; and it cannot be
doubted that the charge is, to a considerable extent, well founded. But
it is as little to be doubted, that there is always a large proportion
of the body, which consists of independent and public-spirited men, who
have an influential weight in the councils of the nation. Hence it is
(the present reign not excepted) that the sense of that body is often
seen to control the inclinations of the monarch, both with regard to men
and to measures. Though it might therefore be allowable to suppose that
the Executive might occasionally influence some individuals in the
Senate, yet the supposition, that he could in general purchase the
integrity of the whole body, would be forced and improbable. A man
disposed to view human nature as it is, without either flattering its
virtues or exaggerating its vices, will see sufficient ground of
confidence in the probity of the Senate, to rest satisfied, not only
that it will be impracticable to the Executive to corrupt or seduce a
majority of its members, but that the necessity of its co-operation, in
the business of appointments, will be a considerable and salutary
restraint upon the conduct of that magistrate. Nor is the integrity of
the Senate the only reliance. The Constitution has provided some
important guards against the danger of executive influence upon the
legislative body: it declares that "No senator or representative shall
during the time for which he was elected, be appointed to any civil
office under the United States, which shall have been created, or the
emoluments whereof shall have been increased, during such time; and no
person, holding any office under the United States, shall be a member of
either house during his continuance in office."
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Don't argue with me - argue with him. 38 Comments (0 topical, 38 editorial, 0 hidden) Post a comment »
"Hamilton is so .... not eloquent... smart as to make me cry. Say what you will --- Hamilton has always been my favorite... "
Mine too. When Jefferson was fighting with him over the National Bank issue, he appealed to Madison for help. Can you imagine - being so bright that Jefferson would need help.
But then he was also flawed getting caught up in an affair with a married woman, getting blackmailed and eventually getting shot in a duel. A lesson in that.
mrick
So the president cannot appoint people with whom he is familiar and comfortable with? If so then no Cheney, no Rumsfeld, no Rice, etc. etc. etc.
This is not JFK appointing RFK Attorney General - this is Bush appointing someone whom he has known and worked with for 10 years.
I agree Miers may be a bad pick but I can't know that until the hearings when she explains her positions. Before then all of this she's not qualified because she didn't go to Yale type of stuff is hot air.
No. Fed 76 does not disqualify all friends, only those who are not qualified. The very definition of cronyism is "the appointment of friends and associates to positions of authority, without any regard to their qualification." Thus, people like Cheney, who were eminently qualified for the position that friends appointed them to are not cronies. The whole idea of "advise and consent" is to make sure the candidate actually has qualifications beyond that of mere friendship with the president. Because the Miers appointment was made on the basis of friendship alone, without any consideration of her merit, she is a crony that should be properly rejected by the Senate.
The fourth item on Hamilton's list can be eliminated as a concern. As for the first three, Ms. Miers really doesn't fall into those either - maybe "attachment", but in a fairly loose sense.
There's plenty to object to in her nomination, but "unfit" seems too strong a characterization. It's not so much criticism of Ms. Miers as it is criticism of the POTUS and the candidates he did not select.
In this case, Hamilton's critique is most aptly focused on the "favortism" of the executive rather than the character of the nominee.
Now there's an idea. Think there's editorials on record of people accusing JFK of "cronyism" for nominating his brother as Atty. Gen.?
Very good. Actually, it might not have helped. One story is that Hamilton fired his gun in the air. I think his brother had been killed in a duel. But I don't think anyone knows for sure what happened.
If any history buffs here has a story, would love to here it.
mrick
(The president will choose the nominee with) a livelier sense of duty and a more exact regard to reputation. He will, on this account, feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them.
This is the crux of this Paper. Many feel that, as the circuit of investigation ended within the White House, that said investigation of qualified candidates has been circumspect. Miers has been hamstrung by her success; more precisely, the proximity of her successes to her current patron.
I, personally coming from a "low" family and a small southern school, would NEVER impugn someone's abilities or education from their pedigree --- one could quite correctly describe me as anti-elitist...
Because the Miers appointment was made on the basis of friendship alone, without any consideration of her merit, she is a crony that should be properly rejected by the Senate.
Your extensive study of Harriet Miers' credentials?
Or, because Michelle Malkin says so?
Miers' credentials notwithstanding, her proximity to PotUS leaves a bad taste in the mouth of this Republic.
There is nothing to argue with relevant to the current situation. Hamilton merely lists the reasons a President would appoint some "unfit character" and extols the beauty of the system. I agree with both, as I assume most do.
A determination of "unfit character" is independent of the reasons a President would nominate someone. An incompetent pick devoid of bias or favoritism would merit rejection whereas a competent pick replete with favoritism would not.
If I were in the White House, and read all these comments and articles, I'd turn to my colleague and have the following conversation:
Self: Have these guys and gals ever held office?
Colleague: I'm not sure. I'll bet some have, but I'm confident most haven't.
Self: Have they been willing to leave their private sector jobs, come to Washington and actually work in the Administration? Actually do some of the heavy lifting?
Colleague: Again, I'll bet some are in the Administration, some others are active in the party--but I'll bet that most are private citizens.
Self: Gee. If they feel this strongly and passionately, you'd think they'd be willing to come out from behind the safe side of the keyboards, and actually walk the walk.
Colleague: Yeah, you'd think.
Everyone, let's defer to the wisdom of our elected leaders, and never let them know if we think they're doing wrong. Class? All right.
Dismissed.
...if I had the right friends. But I've never made them, nor had more than a niggling desire to rule over my fellow man.
"Walk the walk" ? ----- As I'm fond of screaming when war is being discussed, THIS IS NOT A GAME. THIS IS NOT A MOVIE. STOP USING STUPID, TIRED METAPHORS.
Meirs the Unqualified with Prof Leon and after that, Miers IQ 101 with Dr. Augustine and then Prof Erick and Survey 211 More Qualified than Miers, followed by Comaparitive Religions of Harriet with Ignatius. Plus, working on my thesis "Redstate Directors, the Founding Fathers Traditions Continued".
Try praying to St. Jude--patron saint of lost causes. What you seem to want here, at this point, is in the realm of miracles.
The President is not our overlord, he is our employee.
The primaries, the election, those are job interviews. On election day we, as a nation, collectively decide which candidate we hire for the job.
When hired, we expect the President to fulfill the campaign promises that he made while interviewing with us, within reasonable parameters.
Since we do not have a national recall, and his appointment of a crony to the Supreme Court does not seem to rise to the level of impeachment, our options are limited to expressing our displeasure, regardless of whether we have taken jobs within the admininstration or not.
Unless of course you'd like to pass a new round of Alien and Sedition Acts to protect our Glorious Leaders from any negative feedback. Heaven forfend would should ever express frustration with our national leaders. Is that McCain-Feingold Part Deux?
Not as over the top as comparing George Bush to Judas Iscariot ( Thirty Pieces of Silver).
But not by much.
Not as over the top as comparing George Bush to Judas Iscariot ( Thirty Pieces of Silver)
But missing the whole point of that title -- you know, that I had accepted thirty pieces of silver (thus, every paragraph after the title...) -- is leading me to reconsider.
And I'd suggest you take a look at the SiO2 walls in your house before tossing any hyperbole rocks, copain.
If no one else is carrying on their traditions.
I don't think Augustine said anything about her IQ.
I thought that the intent of duels among gentlemen at the time was not to kill, but to get as close to killing without doing so.
Here's one account that seems to back up that theory:
http://www.eyewitnesstohistory.com/duel.htm
Burr seemed upset, according to one eye-witness account, when he realized that he had hit Hamilton:
Colonel Burr advanced toward General Hamilton with a manner and gesture that appeared to General Hamilton's friend to be expressive of regret; but, without speaking, turned about and withdrew, being urged from the field by his friend...
Hamilton also expressed that his intent was not to actually hit Burr:
[On the barge, after the duel, returning injured to New York]: Soon after recovering his sight, [Hamilton] happened to cast his eye upon the case of pistols, and observing the one that he had had in his hand lying on the outside, he said, "Take care of that pistol; it is undischarged, and still cocked; it may go off and do harm. Pendleton knows " (attempting to turn his head towards him) 'that I did not intend to fire at him.' 'Yes,' said Mr. Pendleton, understanding his wish, 'I have already made Dr. Hosack acquainted with your determination as to that' He then closed his eyes and remained calm, without any disposition to speak; nor did he say much afterward, except in reply to my questions.
Ok, I argued with Hamilton, with a little help from John Edwards. He said I'm right, Miers actually is qualified and not a crony, and therefore, he says #76 doesn't apply.
One is a shill and huckster who thinks he fools everyone, but only fools the stupidest, most gullible of his audience...
The other is a shill and huckster who thinks he fools everyone, but only fools the stupidest, most gullible of his audience...with bad hair ;)
Actually, I did mean the hair and empty suit (who used to be a senator). He channeled the little baby who died because the doctor didn't do a c-section in time during a trial, that's how he made his fortune.
"Or, because Michelle Malkin says so?"
Where did that come from?
It seems to me that a majority of the people on this site have derided her lack of experience as a judge or in Constitutional law.
That Malkin crack is silly and has no place in this discussion, and I say this as someone who is greatly frustrated at the harsh reactions to Miers.
I'm worried that the taking heads may hurt her so bad the senate blows this. Taranto of BOTW WSJ fame is down after a VIP DC party. Hewitt is stillconfident but...
Don't they know that Bush is president and if they sabotage this woman they are irrelevant?
http://www.opinionjournal.com/best/?id=110007376
later
Perhaps the lesson we ought to take away from Hamilton's demise is the danger of political attacks, even smears.
Truth is Jefferson engaged in a great deal of it, though he did a better job than many at keeping the finger pointed at his surrogates, not himself. (One bitter irony -- James Callendar, the newspaper man he used for his biggest hack job, became disgruntled and turned back on him. It is to him we owe the first known printed accusations about Jefferson and Sally Hemmings.)
As for Hamilton -- he had been at it for years, against Burr, Jefferson, Adams. . . Burr, of course, knew this, and had never done much in the way of response. In fact, it appears that Burr did NOT engage in the same sort of behind-the-scenes maneuvers as Hamilton, Jefferson and a number of others.
But ONE particular accusation Hamilton was rumored to have made (and probably did) proved too much for Burr(or, some would say, provided an opportunity to 'defend his honor' that he felt compelled to take). No one knows quite what it was, though it's generally thought to have been about womanizing. This of itself would not likely be enough --it was a common charge against many politicians, sometimes true, sometimes not, and had not gotten Burr's goat before. The most intriguing guess is that it may have impugned Burr's daughter. (Burr, a widower at this point, had a strong relationship with his daughter, and was very solicitous of his only child --her education, etc. All this is evident from his letters to her.) If someone suggested, let us say, that Burr's affections for his daughter went beyond the bounds of propriety. . . THAT would be a charge no man of honor could be expected to abide. (And note that, whatever Burr's indiscretions, there is nothing in the history to provide the basis for that sort of accusation.)
At any rate, even if we don't know the specific that pushed Burr over the edge, Hamilton would seem to be a warning about going a bit too far in the rough-and-tumble of politics -- smears, rumor-mongering, etc. (And/or not backing down. .. for Hamilton balked at Burr's demands for a generic apology, demanding more specifics to respond to.)
As for what happened on the dueling field --the parties reporting that event had far too much interest in it for us to hope for it to be unraveled. (That, of course, is why so many have written so much about it!)
You need to read up on Burr. He was a total lowlife.
I do agree with you about going to far in politics. I just winder if Bill Clinton's heart attack was the final penalty for his slanders, lies and abuses or if more is to come with teh Hillary campaign scutiny.
He looks about 75 yrs old.
dorian gray
Unfortunately, the so-called DNA "proof" about Jefferson and Sally Hemings was terribly short-sighted in its conclusions, as letters to the editor of Nature noted a few weeks later.
This is the stuff of legends, but not the basis of serious history. Importantly, Hamilton admitted his affair and Jefferson denied any SALLY affair in a private letter. If everything Jefferson said is open to inversion, as Fawn Brodie and some current historical writers say, then Jefferson's denial is to be counted as just another lie. This has the same smell as numerous wacky, leftwing spewings today about anything Bush or GOP. (I'm not defending Bush or the GOP, I'll leave that to others, but the principle applies.)
Do realise that Aaron Burr was charged with treason within a few years, for conspiring to establish an independent empire in New Orleans.
The Treason Trial of Aaron Burr
While he was found innocent, some 30 years later:
Years later, when he heard news of the Texas Revolution, Burr exclaimed to a friend with satisfaction: "There! You see? I was right! I was only thirty years too soon. What was treason in me thirty years ago, is patriotism now."
You need to read up on Burr. He was a total lowlife
As a matter of fact, I have read up on Burr. . . and Hamilton and Jefferson. And the literature doesn't quite support the simple characterization you offer.
The host of studies that have addressed this subject in the past 15 years have had widely ranging conclusions. Some come close to the common, popular view (the one you echo) that Burr was simply a "lowlife". But most are at least more nuanced than that, and many are somewhat more sympathetic, concluding that the whole matter is a lot more complex. It is, in fact, extremely difficult to account not only for his political successes, but for the numerous admirers and supporters he had at the time, if he is really the simple caricature of popular lore.
A few summary observations:
1) Books that deal with Burr only secondarily are far more likely to simply reflect the popular consensus; those that focus on the questions surrounding him tend to be more balanced.
In this regard, take biographies of Alexander Hamilton with a big grain of salt on this point. They tend at times to become hagiographic (even the generally excellent and enjoyable, perhaps definitive work, by Ron Chernow) and so to give little (re)consideration to their image of Burr. And even Chernow gives Burr a bit more balanced view than older works or Richard Brookhiser's little volume. ("Historical fiction" tends to be WRETCHED on this point, creating an absolute caricature of the man.)
- With all the accusations against Burr's character (for which I am sure there is a basis) it is a bit ironic that Jefferson & Hamilton were both very active in attacking their opponents, frequently spreading (or using others to spread) any scurrilous story that might damage another politically, but we have little to no evidence of Burr playing that particular part of the rather rough political games common in the early years of the Republic.
- Some of the most common political accusations against Burr are extremely doubtful, others are very difficult to sort out.
Chief among these --contrary to what Jefferson came to believe, Burr apparently did NOT take any sort of active role in attempting to take the votes in the House that would have secured him the Presidency when he might very easily have done so. (There were several Federalists that suggested they would support him in exchange for promises from him to not overturn certain Federalist policies. He did not respond to them. But Jefferson's spokesmen did speak with them and offer some assurances!)
The "western plot" is a tougher nut to crack (and I'm not ready to exonerate Burr on this). There is enormous confusion about so many aspects of it. It doesn't help that the key anti-Burr government witness was a Spanish spy, nor that Jefferson's motivations to put Burr on trial are murky and confused by his belief that Burr HAD taken steps to take the Presidency from him, etc. (I've curious to explore this point furthre. I just picked up Joseph Wheelan's Jefferson's Vendetta and hope it sheds some light on the matter.)
4) Burr, Jefferson & Hamilton ALL had some significant moral failures. I'm not claiming Burr may not well have been worse, but any simple characterization in which ANY of these comes out as either pure and faultless OR the devil incarnate is absurd.
Let me be clear. I'm not carrying water for Burr.
I just happen to be very suspicious of MOST popular views in which an influential person comes out as faultless OR a pure villain.
On the contrary, despite his failings, I greatly admire Hamilton's hard work and extrordinary accomplishments (esp, Federalist Papers & role as Secretary of the Treasury). Burr made some contributions in setting some important (and good) precedents, mostly indirectly, some even unintentionally, but none of it holds a candle to Hamilton's contributions.
Uh, I believe most of us left the "safe side" of our keyboards last year in spending time, money, and effort to elect this President. In fact, I bet most of us have left the "safe side" of our keyboard quite consistently to help elect Republican candidates at every level of government. I sure hope the administration does not hold the sentiments you do, otherwise they might be having an alternative dialogue with themselves in a year.
Self: Gee, why did we lose so badly in the 2006 elections?
Colleague: I don't know. Where'd all our voters go?
...with these, as they are a mere 200-odd years removed from the present. As such, they are as relevent as the Constitution under which we live.
Hamilton is so .... not eloquent... smart as to make me cry. Say what you will --- Hamilton has always been my favorite...