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 entire 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.









THE FEDERALIST.