LIVE SENATE THREAD: Day 3 - Judicial nominations - Cloture coming today? C-span 2

Some light reading for everyone before today's proceedings begin...

The founding Fathers debate the proceedure for judicial appointments.

MADISON Friday June 1st. 1787

Mr. Madison--thought it would be proper, before a choice shd. be made between a unity and a plurality in the Executive, to fix the extent of the Executive authority; that as certain powers were in their nature Executive, and must be given to that departmt. whether administered by one or more persons, a definition of their extent would assist the judgment in determining how far they might be safely entrusted to a single officer. He accordingly moved that so much of the clause before the Committee as related to the powers of the Executive shd. be struck our & that after the words "that a national Executive ought to be instituted" there be inserted the words following viz, "with power to carry into effect. the national laws. to appoint to offices in cases not otherwise provided for, and to execute such other powers "not Legislative nor Judiciary in their nature." as may from time to time be delegated by the national Legislature". The words "not legislative nor judiciary in their nature" were added to the proposed amendment in consequence of a suggestion by Genl Pinkney that improper powers might otherwise be delegated,

MADISON Teusday June 5. In Committee of the Whole

The words, "one or more" were struck out before "inferior tribunals" as an amendment to the last clause of Resoln. 9th. The Clause-- "that the national Judiciary be chosen by the National Legislature", being under consideration.

Mr. Wilson opposed the appointmt of Judges by the national Legisl: Experience shewed the impropriety of such appointmts. by numerous bodies. Intrigue, partiality, and concealment were the necessary consequences. A principal reason for unity in the Executive was that officers might be appointed by a single, responsible person.

Mr. Rutlidge was by no means disposed to grant so great a power to any single person. The people will think we are leaning too much towards Monarchy. He was against establishing any national tribunal except a single supreme one. The State Tribunals are most proper to decide in all cases in the first instance.

Docr. Franklin observed that two modes of chusing the Judges had been mentioned, to wit, by the Legislature and by the Executive. He wished such other modes to be suggested as might occur to other gentlemen; it being a point of great moment. He would mention one which he had understood was practiced in Scotland. He then in a brief and entertaining manner related a Scotch mode, in which the nomination proceeded from the Lawyers, who always selected the ablest of the profession in order to get rid of him, and share his practice among themselves. It was here he said the interest of the electors to make the best choice, which should always be made the case if possible.

Mr. Madison disliked the election of the Judges by the Legislature or any numerous body. Besides, the danger of intrigue and partiality, many of the members were not judges of the requisite qualifications. The Legislative talents which were very different from those of a Judge, commonly recommended men to the favor of Legislative Assemblies. It was known too that the accidental circumstances of presence and absence, of being a member or not a member, had a very undue influence on the appointment. On the other hand He was not satisfied with referring the appointment to the Executive. He rather inclined to give it to the Senatorial branch, as numerous eno' to be confided in--as not so numerous as to be governed by the motives of the other branch; and as being sufficiently stable and independent to follow their deliberate judgments. He hinted this only and moved that the appointment by the Legislature might be struck out, & and a blank left to be hereafter filled on maturer reflection.

Mr. Wilson seconds it.

On the question for striking out. Massts. ay. Cont. no. N.Y. ay. N.J. ay. Pena. ay. Del. ay. Md. ay. Va. ay. N. C. ay. S.C. no. Geo. ay. [Ayes--9; noes--2.]

Mr. Wilson gave notice that he should at a future day move for a reconsideration of that clause which respects "inferior tribunals"

Mr. Pinkney gave notice that when the clause respecting the appointment of the Judiciary should again come before the Committee, he should move to restore the "appointment by the national Legislature"

The remaining clause of Resolution 9. was postponed.

YATES Tuesday, June 5th, 1787.

Met pursuant to adjournment.

The 9th resolve, That a national judicial be established to consist of one supreme tribunal, and of inferior tribunals, to hold their offices during good behaviour, and no augmentation or diminution in the stipends during the time of holding their offices. Agreed to.

Mr. Wilson moved that the judicial be appointed by the executive, instead of the national legislature.

Mr Madison opposed the motion, and inclined to think that the executive ought by no means to make the appointments, but rather that branch of the legislature called the senatorial; and moves that the words, of the appointment of the legislature, be expunged.

Carried by 8 states--against it 2.

KING 5 June. Come. whole

How shall the Judiciary be appointed by the Legislative or Executive--

Wilson in favor of the latter because the Executive will be responsible--

Rutledge agt. it because the States in genl. appt. in yt. way

Franklin. The 16 lords of Sessions in Scotland are the Judicial--they are appointed by the Barristers or Doctors. They elect the most learned, Doctor, because he has the most business wh. they may divide when he becomes a Judge--

Madison--I am for farther Diliberation perhaps it will be best that the appointment shd. be by the Senatepostponed.

N. H. Mas. N Y. Pen. Mard. by ye. Executive

R Iby the people

Con. N Jer. Del. Virg. N C. S C. by the Leg.

Rutledge proposes to have a supreme Tribunal to be appointed by the Genl. Govt. but no subordinate Tribunals--except those already in the several States--

Wilson agt. it--

Dickerson--agt.

Wilson the State and Genl. Tribunals will interfere--we want a National Judicial--let it be entire and originate from the Genl. Govt.

Madison proposes to vest the Genl. Govt. with authority to erect an Independent Judicial, coextensive wt. ye. Nation -

5 A. 4 No. 2 divd.

PIERCE

Mr. Rutledge was of opinion that it would be right to make the adjudications of the State Judges, appealable to the national Judicial.

Mr. Madison was for appointing the Judges by the Senate.

Mr. Hamilton suggested the idea of the Executive's appointing or nominating the Judges to the Senate which should have the right of rejecting or approving.

Mr. Butler was of opinion that the alteration of the confederation ought not to be confirmed by the different Legislatures because they have sworne to support the Government under which they act, and therefore that Deputies should be chosen by the People for the purpose of ratifying it.

Mr. King thought that the Convention would be under the necessity of referring the amendments to the different

YATES Wednesday, June 13th, 1787.

Met pursuant to adjournment. Present II states.

Gov. Randolph observed the difficulty in establishing the powers of the judiciary--the object however at present is to establish this principle, to wit, the security of foreigners where treaties are in their favor, and to preserve the harmony of states and that of the citizens thereof. This being once established, it will be the business of a sub-committee to detail it; and therefore moved to obliterate such parts of the resolve so as only to establish the principle, to wit, that the jurisdiction of the national judiciary shall extend to all cases of national revenue, impeachment of national officers, and questions which involve the national peace or harmony.

Agreed to unanimously.

It was further agreed, that the judiciary be paid out of the national treasury.

Mr. Pinkney moved that the judiciary be appointed by the national legislature.

Mr. Madison of is opinion that the second branch of the legislature ought to appoint the judiciary, which the convention agreed to.

MADISON Monday June 18. in Committee of the whole.

on the propositions of Mr. Patterson & Mr. Randolph.

Mr. Hamilton, had been hitherto silent on the business before the Convention, partly from respect to others whose superior abilities age & experience rendered him unwilling to bring forward ideas dissimilar to theirs, and partly from his delicate situation with respect to his own State, to whose sentiments as expressed by his Colleagues, he could by no means accede. The crisis however which now marked our affairs, was too serious to permit any scruples whatever to prevail over the duty imposed on every man to contribute his efforts for the public safety & happiness. He was obliged therefore to declare himself unfriendly to both plans.

...

He did not mean to offer the paper he had sketched as a proposition to the Committee. It was meant only to give a more correct view of his ideas, and to suggest the amendments which he should probably propose to the plan of Mr. R. in the proper stages of its future discussion. He reads his sketch in the words following: to wit

IV. The supreme Executive authority of the United States to be vested in a Governour to be elected to serve during good behaviour--the election to be made by Electors chosen by the people in the Election Districts aforesaid The authorities & functions of the Executive to be as follows: to have a negative on all laws about to be passed, and the execution of all laws passed, to have the direction of war when authorized or begun; to have with the advice and approbation of the Senate the power of making all treaties; to have the sole appointment of the heads or chief officers of the departments of Finance, War and Foreign Affairs; to have the nomination of all other officers (Ambassadors to foreign Nations included) subject to the approbation or rejection of the Senate; to have the power of pardoning all offences except Treason; which he shall not pardon without the approbation of the Senate.

MADISON Tuesday July 17. in Convention

9th. Resol:
"to appoint to offices in cases not otherwise provided for". agreed to nem. con

MADISON Wednesday July 18. in Convention

Resol. 11. "that a Natl. Judiciary be estabd. to consist of one supreme tribunal." agd. to nem. con.

"The Judges of which to be appointd. by the 2d. branch of the Natl. Legislature."

Mr. Ghorum, wd. prefer an appointment by the 2d branch to an appointmt. by the whole Legislature; but he thought even that branch too numerous, and too little personally responsible, to ensure a good choice. He suggested that the Judges be appointed by the Execuve. with the advice & consent of the 2d branch, in the mode prescribed by the constitution of Masts. This mode had been long practised in that country, & was found to answer perfectly well.

Mr. Wilson, still wd. prefer an an appointmt. by the Executive; but if that could not be attained, wd. prefer in the next place, the mode suggested by Mr. Ghorum. He thought it his duty however to move in the first instance "that the Judges be appointed by the Executive." Mr. Govr. Morris 2ded. the motion.

Mr. L. Martin was strenuous for an appt. by the 2d. branch. Being taken from all the States it wd. be best informed of characters & most capable of making a fit choice.

Mr. Sherman concurred in the observations of Mr. Martin, adding that the Judges ought to be diffused, which would be more likely to be attended to by the 2d. branch, than by the Executive.

Mr Mason. The mode of appointing the Judges may depend in some degree on the mode of trying impeachments, of the Executive. If the Judges were to form a tribunal for that purpose, they surely ought not to be appointed by the Executive. There were insuperable objections besides agst. referring the appointment to the Executive. He mentioned as one, that as the seat of Govt. must be in some one State, and the Executive would remain in office for a considerable time, for 4, 5, or 6 years at least he would insensibly form local & personal attachments within the particular State that would deprive equal merit elsewhere, of an equal chance of promotion.

Mr. Ghorum. As the Executive will be responsible in point of character at least, for a judicious and faithful discharge of his trust, he will be careful to look through all the States for proper characters.--The Senators will be as likely to form their attachments at the seat of Govt where they reside, as the Executive. If they can not get the man of the particular State to which they may respectively belong, they will be indifferent to the rest. Public bodies feel no personal responsibly and give full play to intrigue & cabal. Rh. Island is a full illustration of the insensibility to character produced by a participation of numbers, in dishonorable measures, and of the length to which a public body may carry wickedness & cabal.

Mr. Govr. Morris supposed it would be improper for an impeachmt. of the Executive to be tried before the Judges. The latter would in such case be drawn into intrigues with the Legislature and an impartial trial would be frustrated. As they wd. be much about the seat of Govt they might even be previously consulted & arrangements might be made for a prosecution of the Executive. He thought therefore that no argument could be drawn from the probability of such a plan of impeachments agst. the motion before the House.

Mr. Madison, suggested that the Judges might be appointed by the Executives with the concurrence of 1/3 at least of the 2d. branch. This would unite the advantage of responsibility in the Executive with the security afforded in the 2d. branch agst. any incautious or corrupt nomination by the Executive.

Mr. Sherman, was clearly for an election by the Senate. It would be composed of men nearly equal to the Executive, and would of course have on the whole more wisdom. They would bring into their deliberations a more diffusive knowledge of characters. It would be less easy for candidates to intrigue with them, than with the Executive Magistrate. For these reasons he thought there would be a better security for a proper choice in the Senate than in the Executive. Mr. Randolph. It is true that when the appt. of the Judges was vested in the 2d. branch an equality of votes had not been given to it. Yet he had rather leave the appointmt. there than give it to the Executive. He thought the advantage of personal responsibility might be gained in the Senate by requiring the respective votes of the members to be entered on the Journal. He thought too that the hope of receiving appts. would be more diffusive if they depended on the Senate, the members of which wd. be diffusively known, than if they depended on a single man who could not be personally known to a very great extent; and consequently that opposition to the System, would be so far weakened

Mr. Bedford thought there were solid reasons agst. leaving the appointment to the Executive. He must trust more to information than the Senate. It would put it in his power to gain over the larger States, by gratifying them with a preference of their Citizens. The responsibility of the Executive so much talked of was chimerical. He could not be punished for mistakes.

Mr. Ghorum remarked that the Senate could have no better information than the Executive They must like him, trust to information from the members belonging to the particular State where the Candidate resided. The Executive would certainly be more answerable for a good appointment, as the whole blame of a bad one would fall on him alone. He did not mean that he would be answerable under any other penalty than that of public censure, which with honorable minds was a sufficient one.

On the question for referring the appointment of the Judges to the Executive, instead of the 2d. branch

Mas. ay. Cont. no. Pa. ay. Del. no. Md. no Va. no. N. C. no. S. C. no--Geo. absent. [Ayes--2; noes--6; absent--1.]

Mr. Ghorum moved "that the Judges be nominated and appointed by the Executive, by & with the advice & consent of the 2d branch & every such nomination shall be made at leastdays prior to such appointment". This mode he said had been ratified by the experience of 140 years in Massachussts. If the appt. should be left to either branch of the Legislature, it will be a mere piece of jobbing.

Mr. Govr. Morris 2ded. & supported the motion.

Mr. Sherman thought it less objectionable than an absolute appointment by the Executive; but disliked it as too much fettering the Senate.

Question on Mr. Ghorum's motion

Mas. ay. Con. no. Pa ay. Del. no. Md. ay. Va. ay. N. C. no. S. C. no. Geo. absent. [Ayes--4; noes--4; absent--1.]

Mr. Mradison moved that the Judges should be nominated by the Executive, & such nomination should become an appointment if not disagreed to withindays by 2/3 of the 2d. branch. Mr. Govt. Morris 2ded. the motion. By common consent the consideration of it was postponed till tomorrow.

MADISON Saturday July 21 in Convention

The motion made by Mr. Madison July 18. & then postponed, "that the Judges shd. be nominated by the Executive & such nominations become appointments unless disagreed to by 2/3 of the 2d. branch of the Legislature," was now resumed.

Mr. Madison stated as his reasons for the motion. I that it secured the responsibility of the Executive who would in general be more capable & likely to select fit characters than the Legislature, or even the 2d. b. of it, who might hide their selfish motives under the number concerned in the appointment- 2 that in case of any flagrant partiality or error, in the nomination, it might be fairly presumed that 2/3 of the 2d. branch would join in putting a negative on it. 3. that as the 2d. b. was very differently constituted when the appointment of the Judges was formerly referred to it, and was now to be composed of equal votes from all the States, the principle of compromise which had prevailed in other instances required in this that their shd. be a concurrence of two authorities, in one of which the people, in the other the states, should be represented. The Executive Magistrate wd be considered as a national officer, acting for and equally sympathising with every part of the U. States. If the 2d. branch alone should have this power, the Judges might be appointed by a minority of the people, tho' by a majority, of the States, which could not be justified on any principle as their proceedings were to relate to the people, rather than to the States: and as it would moreover throw the appointments entirely into the hands of ye Nthern States, a perpetual ground of jealousy & discontent would be furnished to the Southern States.

Mr. Pinkney was for placing the appointmt. in the 2d. b. exclusively. The Executive will possess neither the requisite knowledge of characters, nor confidence of the people for so high a trust.

Mr. Randolph wd. have preferred the mode of appointrot. proposed formerly by Mr Ghorum, as adopted in the Constitution of Massts. but thought the motion depending so great an improvement of the clause as it stands, that he anxiously wished it success. He laid great stress on the responsibility of the Executive as a security for fit appointments. Appointments by the Legislatures have generally resulted from cabal, from personal regard, or some other consideration than a title derived from the proper qualifications. The same inconveniencies will proportionally prevail if the appointments be be referred to either branch of the Legislature or to any other authority administered by a number of individuals.

Mr. Elseworth would prefer a negative in the Executive on a nomination by the 2d. branch, the negative to be overruled by a concurrence of 2/3 of the 2d. b. to the mode proposed by the motion; but preferred an absolute appointment by the 2d. branch to either. The Executive will be regarded by the people with a jealous eye. Every power for augmenting unnecessarily his influence will be disliked. As he will be stationary it was not to be supposed he could have a better knowledge of characters. He wilt be more open to caresses & intrigues than the Senate. The right to supersede his nomination will be ideal only. A nomination under such circumstances will be equivalent to an appointment.

Mr. Govr. Morris supported the motion. I. The States in their corporate capacity will frequently have an interest staked on the determination of the Judges. As in the Senate the States are to vote the Judges ought not to be appointed by the Senate. Next to the impropriety of being Judge in one's own cause, is the appointment of the Judge. 2. It had been said the Executive would be uninformed of characters. The reverse was ye truth. The Senate will be so. They must take the character of candidates from the flattering pictures drawn by their friends. The Executive in the necessary intercourse with every part of the U. S. required by the nature of his administration, will or may have the best possible information. 3. It had been said that a jealousy would be entertained of the Executive. If the Executive can be safely trusted with the command of the army, there can not surely be any reasonable ground of Jealousy in the present case. He added that if the Objections agst. an appointment of the Executive by the Legislature, had the weight that had been allowed there must be some weight in the objection to an appointment of the Judges by the Legislature or by any part of it.

Mr. Gerry. The appointment of the Judges like every other part of the Constitution shd. be so modeled as to give satisfaction both to the people and to the States. The mode under consideration will give satisfaction to neither. He could not conceive that the Executive could be as well informed of characters throughout the Union, as the Senate. It appeared to him also a strong objection that 2/3 of the Senate were required to reject a nomination of the Executive. The Senate would be constituted in the same manner as Congress. And the appointments of Congress have been generally good.

Mr. Madison, observed that he was not anxious that should be necessary to disagree to a nomination. He had given this form to his motion chiefly to vary it the more clearly from one which had just been rejected. He was content to obviate the objection last made, and accordingly so varied the motion as to let a majority reject.

Col. Mason found it his duty to differ from his colleagues in their opinions & reasonings on this subject. Notwithstanding the form of the proposition by which the appointment seemed to be divided between the Executive & Senate, the appointment was substantially vested in the former alone. The false complaisance which usually prevails in such cases will prevent a disagreement to the first nominations. He considered the appointment by the Executive as a dangerous prerogative. It might even give him an influence over the Judiciary department itself. He did not think the difference of interest between the Northern and Southern States could be properly brought into this argument. It would operate & require some precautions in the case of regulating navigation, commerce & imposts; but he could not see that it had any connection with the Judiciary department.

On the question, the motion now being "that the executive should nominate, & such nominations should become appointments unless disagreed to by the Senate"

Mas. ay. Ct. no. Pa. ay. Del. no. Md. no. Va. ay. N. C. no. S. C. no. Geo. no. [Ayes--3; noes--6.]

On question for agreeing to the clause as it stands by which the Judges are to be appointed by 2d. branch

Mas. no. Ct. ay. Pa. no. Del. ay. Md, ay. Va. no. N. C. ay. S. C. ay. Geo. ay. [Ayes-- 6; noes-- 3.]

Adjourned

MADISON Thursday July. 2[6] in Convention

On the question on the whole resolution as amended in the words following--"that a National Executive be instituted--to consist of a single person--to be chosen by the Natl. legislature--for the term of seven years--to be ineligible a 2d. time--with power to carry into execution the natl. laws--to appoint to offices in cases not otherwise provided for--to be removeable on impeachment & conviction of mal-practice or neglect of duty--to receive a fixt compensation for the devotion of his time to the public service, to be paid out of the Natl. Treasury"--it passed in the affirmative

MADISON Monday August 6th. In Convention

Mr. Rutlidge delivered in the Report of the Committee of detail as follows;

IX [VIII]

Sect 1. The Senate of the United States shall have power to make treaties, and to appoint Ambassadors, and Judges of the supreme Court.

X [IX]

Sect. 1. The Executive Power of the United States shall be vested in a single person. His stile shall be "The President of the United States of America;" and his title shall be, "His Excellency". He shall be elected by ballot by the Legislature. He shall hold his office during the term of seven years; but shall not be elected a second time.

Sect. 2. He shall, from time to time, give information to the Legislature, of the state of the Union: he may recommend to their consideration such measures as he shall judge necessary, and expedient: he may convene them on extraordinary occasions. In case of disagreement between the two Houses, with regard to the time of adjournment, he may adjourn them to such time as he thinks proper: he shall take care that the laws of the United States be duly and faithfully executed: he shall commission all the officers of the United States; and shall appoint officers in all cases not otherwise provided for by this Constitution.

MADISON In Convention Thursday Aug: 23. 1787

Art: IX being next for consideration,

Mr Govr Morris argued agst. the appointment of officers by the Senate. He considered the body as too numerous for the purpose; as subject to cabal; and as devoid of responsibility.--If Judges were to be tried by the Senate according to a late report of a Committee it was particularly wrong to let the Senate have the filling of vacancies which its own decrees were to create.

Mr. Wilson was of the same opinion & for like reasons.

The art IX-- being waved-- and art VII. sect 1. resumed,

Art IX. sect. 1. being resumed, to wit "The Senate of the U. S. shall have power to make treaties, and to appoint Ambassadors, and Judges of the Supreme Court."

Mr. Randolph observing that almost every Speaker had made objections to the clause as it stood, moved in order to a further consideration of the subject, that the Motion of Mr. Govr. Morris should be postponed, and on this question It was lost, the States being equally divided. On Mr. Govr. Morris Motion

Masts. no. Cont no. N.J. no. Pa. ay--Del. no--Md. no. Va. no. N. C divd S. C. no. Geo-- no. [Ayes--1; noes--8; divided 1.]

The several clauses of Sect: 1. art IX, were then separately postponed after inserting "and other public Ministers" next after "Ambassadors."

The 1st Sect. art IX. was finally referred nem: con: to the committee of Five, and the House then

Adjourned.

MADISON Friday August 24. 1787. In Convention

Sect. 2. Art: X being taken up.

Mr. Sherman objected to the sentence "and shall appoint officers in all cases not otherwise provided for by this Constitution". He admitted it to be proper that many officers in the Executive Department should be so appointed-- but contended that many ought not, as general officers in the Army in time of peace &c. Herein lay the corruption in G. Britain. If the Executive can model the army, he may set up an absolute Government; taking advantage of the close of a war and an army commanded by his creatures. James 2d. was not obeyed by his officers because they had been appointed by his predecessors not by himself. He moved to insert "or by law" after the word "Constitution".

On Motion of Mr Madison "officers" was struck out and "to offices" inserted, in order to obviate doubts that he might appoint officers without a previous creation of the offices by the Legislature.

On the question for inserting "or by law as moved by Mr. Sherman

N. H. no. Mas. no. Ct. ay. N. J. no. Pena. no. Del. no. Md. no. Va. no. N. C. absent. S. C. no. Geo. no. [Ayes--1; noes--9; absent--1.]

Mr. Dickinson moved to strike out the words "and shall appoint to offices in all cases not otherwise provided for by this Constitution" and insert--"and shall appoint to all offices established by this Constitution, except in cases herein otherwise provided for, and to all offices which may hereafter be created by law."

Mr Randolph observed that the power of appointments was a formidable one both in the Executive & Legislative hands-- and suggested whether the Legislature should not be left at liberty to refer appointments in some cases, to some State Authority.

Mr. Dickenson's motion, it passed in the affirmative

N. H. no. Mas-- no--Ct ay-- N-- J-- ay. Pa. ay-- Del. no. Md ay. Va. ay-- N-- C. abst. S. C no. Geo-- ay [Ayes--6; noes--4; absent--1.]

Mr. Dickinson then moved to annex to his last amendment "except where by law the appointment shall be vested in the Legislatures or Executives of the several States". Mr. Randolph 2ded. the motion

Mr. Wilson-- If this be agreed to it will soon be a standing instruction from the State Legislatures to pass no law creating offices, unless the appts be referred to them. Mr. Sherman objected to "Legislatures" in the motion, which was struck out by consent of the movers.

Mr. Govr. Morris--This would be putting it in the power of the States to say, "You shall be viceroys but we will be viceroys over you"--

The motion was negatived without a Count of the States--

MADISON Saturday August. 25. 1787-- In Convention

On The question now taken on Mr. Dickinson motion of yesterday, allowing appointments to offices, to be referred by the Genl. Legislature to the Executives of the several States" as a farther amendment to sect. 2. art. X., the votes were

N.H. no Mas. no. Ct ay. Pa. no-- Del. no. Md divided-- Va. ay-- N-- C-- no-- S. C. no. Geo. ay-- [Ayes--3; noes--6; divided--1.]

In amendment of the same section, "other public Ministers" were inserted after "ambassadors".

Mr. Govr Morris moved to strike out of the section "and may correspond with the supreme Executives of the several States" as unnecessary and implying that he could not correspond with others. Mr. Broome 2ded. him.

On the question

N. H. ay. Mas. ay. Ct. ay. Pa. ay. Del. ay. Md. no. Va. ay. N. C. ay-- S. C. ay. Geo-- ay. [Ayes-- 9; noes-- I.]

MADISON Tuesday Sepr. 4. 1787. In Convention

Mr. Brearley from the Committee of eleven made a further partial Report as follows

"The Committee of Eleven to whom sundry resolutions &c were referred on the 31st. of August, report that in their opinion the following additions and alterations should be made to the Report before the Convention, viz

(7) 'Sect-- 4 The President by and with the advice and Consent of the Senate, shall have power to make Treaties; and he shall nominate and by and with the advice and consent of the Senate shall appoint ambassadors, and other public Ministers,Judges of the Supreme Court, and all other Officers of the U-- S--, whose appointments are not otherwise herein provided for. But no Treaty shall be made without the consent of two thirds of the members present.'

MADISON Friday Sepr. 7. 1787. In Convention

On the question on these words in the clause viz -- "He shall nominate & by & with the advice and consent of the Senate, shall appoint ambassadors, and other public ministers (and Consuls) Judges of the supreme Court" Agreed to: nem: con: the insertion of "(and consuls" having first taken place.

On the question on the following words "And all other officers of U. S--"

N. H-- ay-- Mas ay. Ct ay. N-- J-- ay. Pa. no. Del. ay. Md. ay. Va ay. N-- C. ay. S-- C. no. Geo. ay. [Ayes 9; noes -- 2.]

MADISON Saturday September 8th. In convention

The last Report of Committee of Eleven (see Sepr. 4) was resumed.

Proceedings of Convention Referred to the Committee of Style and Arrangement

Sect. 4. The President by and with the advice and consent of the Senate, shall have power to make treaties: and he 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 U. S. whose appointments are not otherwise herein provided for. But no Treaty shall be made without the consent of two thirds of the Members present.

Report of Committee of Style

II.

Sect. 2.

lang;(a)rang; He shall have power, by and with the advice and consent of the senate, to make treaties, provided two-thirds of the senators present concur; and he 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.

MADISON Saturday Sepr 15th. 1787. In Convention

Art II. sect. 2. (paragraph 2) To the end of this, Mr Governr. Morris moved to annex "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." Mr Sherman 2ded. the motion

Mr. Madison. It does not go far enough if it be necessary at all -- Superior Officers below Heads of Departments ought in some cases to have the appointment of the lesser offices.

Mr Govr Morris There is no necessity. Blank Commissions can be sent --

On the motion

N. H. ay. Mas-- no-- Ct ay. N. J. ay. Pa. ay. Del. no. Md. divd Va no. N. C. ay-- S C no. Geo-- no-- [Ayes -- 5; noes -- 5; divided -- 1.]

The motion being lost by the equal division of votes, It was urged that it be put a second time, some such provision being too necessary, to be omitted. and on a second question it was agreed to nem. con.

Art: II. Sect. 2. After "Officers of the U. S. whose appointments are not otherwise provided for," were added the words "and which shall be established by law". THE CONSTITUTION OF THE UNITED STATES

Article. II.

Section. 2.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he 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.

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