Evening star., 1937-08-08

G1>n nAoN AIL nun n. VAN
DENBERG'S move last week to
put the Senate on record In
- favor of an appointment of q
successor to Supreme Court Justice
Willis Van Devanter before Congress
adjourns brings up point which the
Constitutional Convention, in its ses-
sions $50 years ago, apparently did not
foresee. And yet the convention dele
gates gave particular attention to the
appointment OF members of the Su-
preme Court, and many Of them were
convinced that the Senate should be
concerned in the process. Indeed
until fairly late in the convention, it
was proposed to give the Senate the
sole power OF selecting justices.
The convention was organized on
May Is, 1887. -Four days later Ed
mund Randolph presented a rough
draft Of constitution in the form OF
series Of resolutions This has since
become famous as the Virginia plan"
and it formed the basis Of the con-
vention's work. Among the resolu-
tions was one which called for a ma
tional judiciary, to be chosen by the
National Legislature.
On June 5 this provision Of the
Virginia plan was discussed by the
convention, and there was An ami
mated debate The chief source for
the debates of the convention-which
were not officially recorded-is the
journal Of James Madison. His nota-
tions are brief but to the point. giving
the spirit and most Of the matter OF
the delegates speeches. From them
we learn that James Wilson OF Penn
sylvania was the first to object to
legislative appointment Of the judges
Monarchy Issue Raised.
Intrigue, partiality and conceal
ment," said Wilson, are the necessary
consequences" OF appointment by a
large body Of men. He preferred a
single, responsible person to under
take the task But John Rutledge Of
South Carolina demurred. The
people will think we are leaning too
much toward monarchy" he said.
The elderly Benjamin Franklin
peacemaker Of the convention, inter-
vened. 1t would be wise, he suggested
to discuss all possible methods of Sc
lection to obtain the best. He men
toned the Scotch method Of choosing
INSTRUMENTATION by lawyers. They
always chose the best man among
them. he added. so as to share his
practice and eliminate competition.
This remark brought laugh, and
then Madison proposed compromise
He did not think the legislature as q
whole was we'll qualified to choose JUS
tices. but perhaps the less numerous
and more select Senate might fill the
bill. The question was postponed until
June l3, when. after a strong speech
by Madison. the power of appointing
members OF the national bench was
tentatively given to the Senate.
Wanted Both Safeguards.
The solution Of June l3 proved only
temporary. The convention was tori
between two opposing desires on this
subject: The delegates wanted to in-
sure that the appointments would be
made by some one, or some body
which would be responsible-and in 9
legislative body individual responsibility
is easily lost-and yet they wished the
judiciary to be safe from the encroach-
re NJ {
Madison put it. it was a contest be-
tween responsibility and security
Those who stressed the former were
not satisfied with the choice of the
Senate as the appointing power. and
on July 13 Nathaniel Gorham OF
Massachusetts arose to express their
objections.
He would prefer, he said, IAN ap-
pointment by the second branch the
Senate to an appointment by the
whole Legislature, but he thought even
that branch too numerous and toe
little personally responsible to insure
a good choice" He proposed, there
fore, that the Massachusetts method
be adopted. wherein the Executive ap-
pointed judges with the advice and
consent Of the Upper House of the
Legislature.
Issue Again Postponed.
James Wilson and Gouverneul
Morris accepted this. though the
former said he would rather the
Executive were untrammeled In hi,
choice But Luther Martin. Roger
Sherman and George Mason came
out strongly for leaving the selection
In the hands OF the Senate. AS q
representative body, they urged. the
Senate would be collectively better
fitted to judge the qualifications OF
men from different parts of the
country and the judges would be
more "diffused" Further, II as was
then considered possible. the Su-
preme Court was to try impeach-
ment cases. it would be unWise tt
have the selection of its members
in the hands of man on whom
they might be called upon to sit ir
judgment.
Gorham suggested that if thu
Senators cannot get man of tn.
particular State to which they may
respectively belong they will be in.
different to the rest''-an Accurat,
forecast of the rule Of "Senatoria
courtesy" which gives a Senator
virtually veto power over appoint
ments In his State. Sherman argued
in reply that the Senate would b.
composed of men nearly equal tt
the Executive "and would. OF course
have on the whole more wisdom,
A motion for direct appointment
by the Executive was voted down
and another for joint selection BY
Executive and Senate received ii,
vote from the eight States repre-
sented at the session. The question
was therefore again postponed.
New Argument Used.
On July 2l the discussion was re-
newed. Madison proposed another
compromise-thatt the President nom.
mate the justices, and that un-
less two-thirds Of the Senate op.
posed the nomination within Ger.
tain specified time, the nomination