Evening star., 1937-08-08
FOUNDERS LONG DEBATED
POWER TO SELECT COURT
Constitutional Convention of 1727
Failed, However, to See Recess
CONTROVERSY
Controversy.

)Versy.
by the representatives Of noes,h,.
! litigants
But the eloquence OF Madison and
Morris was not suficient to move
the convention from it's nistr,lst ~
Executive power, although Madison
agreed to reduce his requirement,
FOR check on the presidential
power to majority of the Senate.
BY vote Of three States to six. the
Senate remained the sole appointing
agency for the justices of the SUI
preme Court.
| Battle Continued.
! On August 6 draft of the Con.
stltution was presented BY a com.
mittee, retaining this provision. The
nght against 1t was kept up by men
ike wilson and Morris, who brought
| forward new point-one which
had previously been presented in
reverse. Since the Senate was now
to be the court Of impeachment, and
judges might be tried by it. the
| Upper House should not have the
nlllng Of vacancies which It's own
DEGREES were to create"
The strength of the opposition
postponed definite action on the
| judiciary clause. and it was referred,
with other debatabe points, to
committee. This reported back on
| September 4, with what was essen
TALLY Gorham's proposal-that the
/ hon
and with the consent Of the Senate
snail appoint :. judges Of the
Supreme Court"
This provoked new storm, but
the opponents Of the plan to asso-
clate the Executive with the Sen.
ate in appointments had percep-
tlbillty lost strength. George Mason.
1t is true, was opposed to appoint
ments by either house of the Lepls-
lature and yet was "averse to vest
so dangerous a power in the Prea-
dent alone" He suggested q privy
counsel OF six, two out Of the East
ern, two out of the middle and two
out OF the Southern quarters of the
Union,' to act as the appointing
power. But this proposal was voted
! down.
Plan Finally Adopted.
Elbrldae Gerry again voiced his
fears that the so-called responsi.
bility OF the Executive would be
"chimerical," since the President
cannot know all characters and
can therefore always plead ienor-
ance." However. the committees
plan was adopted by a unanimous
vote of the States represented. and
was part of the final draft of the
Constitution.
The debates of the Founding
Fathers make it quite plain that the
| compromise adopted was intended to
provide both responsibility and Sc
curity, by the joint action Of Presl-
/ dent and Senate. But advice and
| consent is not a phrase capable Of
( precise definition-perhaps, therefore,
/ the upper chamber would be within
It's rights in advising the President
to appoint new justice during this
session. The debates shed little light
in interim appointments.
Senate Usurps Power.
| The Senate has already. BY its IN.
ternal machinery, usurped much Of
the presidential appointing power II
an appointment from a State is made
against the wishes of the Senator
! from that State, the rest of the SEN
ators usually refuse to confirm, under
the traditional ruse OF "sens torial
courtesy In this manner. individual
Senators have acquired, by indirection.
a powerful voice in filling Federal
offices, which it is often dificult for
the President to shout down
James A. Garfield, as President,
was confronted with a situation in
which Roscoe Conkling. Senator from
New York, objected to one of Gar
fields appointments, that Of collector
Of the port of New York. The Sem
! ate, on the old rule refused to con-
| firm. Garfield made an issue Of 1t;
withdrew all nominations except those
to New York posts. and after a hard
battle won his point. But such a
major battle over relatively minor ep-
pointments is not always possible. and
Senators are usually consulted about
offices in their bailiWicks.
| The issue raised by Senator Van
denberg, however, concerns the riz1t
OF the Senate to initiate appointments
by formal declaration, and that is a
matter on which the past sheds little
light.