From: [s--rb--k] at [galaxy.ucr.edu] (aaron greewnood)
Newsgroups: talk.politics.guns,alt.rush-limbaugh,alt.politics.perot,alt.politics.clinton,alt.politics.usa.republican,talk.politics.misc,soc.culture.usa
Subject: FEDERALIST NO 76
Date: 1 Sep 1994 08:26:18 -0700

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 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.''
PUBLIUS.