By Hamilton’s rules on Supreme picks, the Senate’s right and Obama’s wrong
OPINION: New York Post -By Seth Lipsky — Somewhere Alexander Hamilton is smiling. For the battle that’s beginning over President Obama’s nomination of Judge Merrick Garland to the Supreme Court vindicates the famous Founder’s assurances on judicial appointments.
Hamilton knew that Americans would find their protection from would-be kings in the wisdom of the Senate. He marked this point in 69 Federalist, one of the columns he wrote back in 1788 under the pen name Publius.
The topic of Federalist 69 is the “real character of the executive.” It makes it clear that in filling the seat once held by Justice Antonin Scalia, President Obama is at the complete mercy of the Senate — and should be.
It was Hamilton’s aim in the Federalist columns, which he wrote with James Madison and John Jay, to convince New Yorkers to ratify the Constitution. One of the things New Yorkers feared was that a president might take on kingly powers.
Like, say, the sort held by the tyrant George III (and coveted by Barack Obama). Hamilton wrote of judges that what the president had was the power “to nominate, and, WITH THE ADVICE AND CONSENT OF THE SENATE, to appoint.”
Not just judges, but ambassadors and other ministers. It was Hamilton who put the words in all caps. He went on to contrast the powers of the presidency created in the Constitution with those of “the King of Great Britain.”
The king, Hamilton wrote, “is emphatically and truly styled the fountain of honor,” by which he meant something like the original source of power. “He not only appoints to all offices, but can create offices. He can confer titles of nobility at pleasure.”
What Hamilton stressed was what he called “a great inferiority in the power of the President, in this particular, to that of the British king.” Nor, he went on, was the presidential power even “equal to that of the governor of New York.”
At the time in New York, the appointment power was held by a council that included the governor and four state senators. Not only could New York’s governor nominate a state judge, but he was “ENTITLED to a casting vote in the appointment.”
Again, the all-caps are Hamilton’s. And then the famous words: “In the national government, if the Senate should be divided, no appointment could be made.” This is precisely what Hamilton was marking as a constitutional VIRTUE (all-caps mine).
Hamilton went on to sharpen the contrast with New York. In the state’s government, he warned, “if the council should be divided, the governor can turn the scale, and confirm his own nomination.”
For today, Hamilton puts paid to the notion being slyly advanced by President Obama and the Democrats that the Senate has a responsibility to give an up-or-down vote on the nomination of Judge Garland. That is constitutional poppycock.
We are in precisely the circumstances in which Hamilton foresaw that no appointment could be made. The Founders understood that the ability of the states, via the Senate, to check a nomination was one of the Constitution’s attractions.
And why not? They were revolutionary men. They were taking down a monarchy. They did not want to vest a president with kingly powers of appointment. They didn’t require the Senate to hold even so much as an up-or-down-vote.
Hamilton contrasted the mode of appointment by the president and “an entire branch of the national legislature” with the “privacy in the mode of appointment by the governor of New York.”
The governor, he sneered, was “closeted in a secret apartment with at most four, and frequently with only two persons.” So “the power of the chief magistrate of this State, in the disposition of offices, must, in practice, be greatly superior to that of the Chief Magistrate of the Union.”
With such assurance that the president could be blocked by the Senate, New York ratified the Constitution. And that’s what Obama and Garland are up against.
No one knows it better than the justices Garland aspires to join. They understand full well that the Founders intended there to be circumstances where, absent an intervening election, no appointment to the Supreme Court could be made.
They know that the states wouldn’t have ratified the Constitution if this had not been the case. They know that the Founders were prepared to let the king, the president and the Devil himself take the hindmost.