Thomas Jefferson on Advice and Consent
The Founder’s Constitution is a fascinating resource. It contains many historical writings that give a more detailed context of the laws on which our country was based. With all the discussions about a new replacement for the Supreme Court, it’s worth reviewing Article 2, Section 2, Clauses 2 and 3:
[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
There are several letters discussing appointments. There was very legitimate concern the the Executive Branch could be easily deceived to make an appointment, but that the Senate would not be. However, number 48 is one by Thomas Jefferson and is interesting to read: (Thomas Jefferson, Opinion on Powers of the Senate respecting Diplomatic Appointment). Assuming he felt the same way on Judicial appointments, his thoughts are very clear:
The Senate is not supposed by the Constitution to be acquainted with the concerns of the Executive department. It was not intended that these should be communicated to them; nor can they therefore be qualified to judge of the necessity which calls for a mission to any particular place, or of the particular grade, more or less marked, which special and secret circumstances may call for. All this is left to the President. They are only to see that no unfit person be employed. It may be objected that the Senate may, by continual negatives on the person, do what amounts to a negative on the grade; and so indirectly defeat this right of the President. But this would be a breach of trust, an abuse of the power confided to the Senate, of which that body cannot be supposed capable.
This is what the tradition of the Senate was until the Democrats decided to destroy Robert Bork. Before then, they concerned themselves strictly with the qualifications of the candidate, not their views and politics. Now the nomination and approval process is partisan and distasteful, much to the disgust of the American people. Jefferson was pretty clear that this was an abuse of power - and since the Senate still has powers of impeachment, it is likely he thought that much worse than the possibility of a criminal being mistakenly appointed by the Executive.
