Mr. Madison, suggested that the Judges might be appointed by the Executives with the concurrence of 1/3 at least of the 2d. branch. This would unite the advantage of responsibility in the Executive with the security afforded in the 2d. branch agst. any incautious or corrupt nomination by the Executive.
Today, under the filibuster, the idea is that a minority of Senators can defeat the President's nominee, but Madison's idea at one point was that it should take 2/3 of the Senators to reject the nomination.
UPDATE: Betsy Newmark takes this post as a prompt to read through the whole debate on the subject of judicial appointments (and to make her own observations). Really, I recommend reading through the original debates when these questions come up. It is very easy, at the Founders' Constitution website to click on individual clauses of the Constitution and get to the relevant historical materials. It's often quite striking how different these are from the things people are saying about them.
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You want (what, as far as I know is) a comprehensive summary of the convention debates. Here you go.
"How about a supermajority to reject judicial nominees?"
What difference does it make? We have a government of laws, not of men! Errr...don't we?
Matt: That's a PDF file of a law student note reviewing the convention history and so forth. I'd MUCH rather read the original convention notes than a paraphrasing of them.
The filibuster is a tradition in the Senate. It remains a tradition because it is rarely used. In fact, part of the filibuster tradition is that it is rarely used. Filibustering seven circuit appeals nominees is clear abuse of the tradition. In a sense, once the filibustering occurred the tradition was scuttled. We can cartinaly argue over who crossed the Rubicon first. It doesn't matter. Either way, there will no longer be a filibuster tradition regarding judicial nominations in the U.S. Senate.
Indeed it is (and it happens to be my note). Certainly, the convention records are important (hence, my extensive citation and quotation from them), but they're exceedingly disparate, and what I tried to do is connect everything together rather than reading them in diaspora, and draw conclusions from them.
Matt: At Founders' Constitution, the site I link to, the historical materials are collected for each constitutional clause, so it's not hard to read everything. I dislike reading paraphrases in part because everyone is always trying to use these materials to get where they already want to do.
The thing I find just amazing is that the filibuster that is blocking Bush's nominees is a filibuster in name only. It seems that the Senate removed the requirement that a Senator be on his/her feet, talking, a la Mister Smith Goes To Washington, in favor of a mere announcement by 41 Senators that that's their intent and the matter is never even brought to the floor for a vote unless 60 Senators vote to close "debate." The ultimate victory of form over substance.
I'm on your side in this debate (although I would prefer it not come to this showdown), but I must say that I find this revelation interesting, but not particularly enlightening. Using it as an additional argument for doing away with judicial filibusters reminds me of the Democrats who want to use what John Bolton thought of doing (with respect to intelligence data, etc.) as a reason to oppose his nomination.
So Madison made this proposal on judicial nominations, and it was shot down. It's interesting, but ultimately irrelevant.
Basically, the bottom line is that there were groups who wanted pure executive appointment and groups who wanted pure Senatorial appointment, and the language in the Constitution was the result of a compromise to allow both branches to play a role. I think Ann's right that the Constitution itself doesn't say anything about the present issue of the fillibuster either way--but it does say that it envisions the Senate involved and not just "rubber stamping" nominations. Hell, folks in the Senate rejected SCOTUS nominations even in the early Republic.
All that said, I think a strong case can be made with the help of Federalist 10 & 51 for the general importance and necessity of a fillibuster or similar method to protect minority rights, at least in some circumstances. (Not coincidentially, that's the place I happen to place myself in this debate.)
Aren't we forgetting that at the time of the Constitution judges were pretty far down everyone's totem pole in terms of importance? Sort of like the vice presidency is today?
The president would appoint these guys the way he would appoint people to collect customs duties. Their principal jurisdiction was on matters arising under federal statutes and as a safety valve to avoid "home cooking" in state courts.
I think the notion of a large body of federal common law, not to mention the quasi-legislative function the courts have assumed would have astounded these people. Yet it is just those features that have made judicial appointments so sensitive today. Back then, and frankly until fairly recently, the main judicial qualification was some notion of competence, not ideology, since the latter didn't really matter.
Aren't we forgetting that at the time of the Constitution judges were pretty far down everyone's totem pole in terms of importance? Sort of like the vice presidency is today?
The president would appoint these guys the way he would appoint people to collect customs duties. Their principal jurisdiction was on matters arising under federal statutes and as a safety valve to avoid "home cooking" in state courts.
I think the notion of a large body of federal common law, not to mention the quasi-legislative function the courts have assumed would have astounded these people. Yet it is just those features that have made judicial appointments so sensitive today. Back then, and frankly until fairly recently, the main judicial qualification was some notion of competence, not ideology, since the latter didn't really matter.
Ben: Rejected positions are not irrelevant, they just need to be understood for what they are: something that was within the range of things that could be taken seriously but the people who were ultimately making the final decision. Someone supporting the filibuster now and saying the Framers liked checks and would therefore like even more checking could be met with this piece of evidence to show that they thought of leaning in the opposite direction. It's also relevant that they considered putting the appointment of judges in the Senate alone.
Matt: I agree that the Senate shouldn't just be a rubber stamp and the filibuster can serve a good purpose. The question is whether the filibuster has been overplayed to the point where on balance the bad substantially outweighs the good. There's a Senate tradition that's worth something, but the use of the traditional means is changing. At some point there is a breakdown in the procedure and the majority doesn't have to stand powerless forever.
John: You write: "I think the notion of a large body of federal common law, not to mention the quasi-legislative function the courts have assumed would have astounded these people. Yet it is just those features that have made judicial appointments so sensitive today. Back then, and frankly until fairly recently, the main judicial qualification was some notion of competence, not ideology, since the latter didn't really matter."
Yes, this is another thing that has changed so much that we can't just swallow the argument from tradition whole. Some push-back from the minority is a good way to keep the majority from stocking the court with extreme judges. But the willingness to call people extreme right now is so strong and unevenly wielded against women and minorities. I find that intolerable.
The fact that the framers rejected this opinion proves that they didn't want congress to be a rubber stamp for the nominees. Add to that the fact that Madison was in favor of strong central government and you have to wonder how any self-respecting Republican could be in favor of getting rid of the fillibuster.
Adding to the irrelevancy of this considered option are the changes in election of the President and Vice President resulting from the 12th Ammendment and changes in selection of Senators resulting from the 17th Ammendment, both of which have bearing and neither of which were remotely considered by the Framers.
I agree that the tendency to both casually toss the approbation of "right-wing extremist" and to imprudently fillibuster has placed the Democrats on untenable ground. Just as the word "torture" tends to loose meaning when applied to events such as wrapping one in an Isreali flag, the Democrats are increasingly being seen as crying "wolf" when it comes to the matter of justices with extreme positions.
Hyperbole has its place, but when regularly employed as the first choice of expression it tends to lessen the impact of real outrage.
I think it's interesting that the framers didn't trust a legislative body to choose judges because they would reflect their own partialities. They assummed that the president would be more responsible and choose better judges. Mr Bush has proven that theory completely incorrect and done exactly what the framers were trying to avoid. He has chosen incompentent or at least questionable/inappropriate judges. So we are left with a quandary with no good solution.
Article II says "Advise and Consent of the Senate", not "Advise and Consent of the Committee", it must get to the Senate floor for that to happen!
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But TallDave, the House is no help when it comes to who gets to be federal judges (short of impeachment).
Anybody got a vote count?
I've written a two-part post addressing this issue:
Part 1
Part 2
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