Ambition Counteracting Ambition: Separation of Powers in Supreme Court Appointments BARBARA A. PERRY A 2005 American BarAssociation-Harris Poll discovered that more than one-fifth of Americans surveyed thought the three bran ches of government were “Democrat,” “Republican,” and “Independent.”1 How un fortunate that many Americans have so lit tle understanding of this crucial element in our nation’s constitutional structure. Profes sor M.J.C. Vile, the noted British politi cal theorist and author of a seminal book on the separation of powers, observed that the principle of dividing government au thority along functional lines (legislative, executive, and judicial) attempted to vi tiate the paradox that “[fjreedom ordains rules, [yet] [gjovernment is lost liberty.”2 “It is essential,” Vile wrote, “for the estab lishment and maintenance of political liberty that the government be divided into three branches.... Each branch of the government must be confined to the exercise of its own function and not be allowed to encroach upon the functions of other branches.... In this way each of the branches will be a check to the others and no single group of people will be able to control the machinery of the State.”3 No political scientist could begin a sepa ration of powers discussion without referring initially to James Madison’s oft-quoted Feder alist Paper #51, where he described the need for what he called “the necessary partition of power among the several departments” (his word for the branches of government). “By so contriving the interior structure ofthe govern ment ...,” Madison argued, “its several con stituent parts may, by their mutual relations, be the means of keeping each other in their properplaces.”4 The Father ofthe Constitution explained that the “separate and distinct exer cise ofthe different powers ofgovernment” is “essential to the preservation of liberty.... ”5 Thus, “each department should have a will of its own,” and “the members of each should have as little agency as possible in the appoint ment ofthe members ofthe others.” In theory, Madison suggested, all appointments should flow through “the people” and not overlap. Yet, JUSTICES ADVISING PRESIDENTS ON APPOINTMENTS 135 At the 1787 Philadelphia Convention, Ben Franklin explained the effectiveness of the Scottish method for selecting judges. Once a lawyer became a judge, his practice was divvied up among the rest of the bar, thus ensuring that his fellow bar members would always select the most qualified candidate with the most robust practice. he recognized that, in practice, some selection procedures would have to deviate from this principle, especially for the judiciary: “first, because peculiar qualifications being essen tial in the members, the primary considera tion ought to be to select that mode of choice which best secures these qualifications; sec ond, because the permanent tenure by which the appointments are held in that department must soon destroy all sense of dependence on authority conferring them.”6 At the 1787 Philadelphia Convention, the Constitution’s Framers spent more time dis cussing the process ofjudicial selection than the criteria for choosing federal judges. Ac cording to Madison’s Convention Notes, the delegates initially considered appointment of federal judges by the national legislature. James Wilson, Pennsylvania’s brilliant repre sentative and future member of the Court, op posed the proposal, arguing that “[ijntrigue, partiality, and concealment” resulted from ju dicial appointments by legislatures. More over, the primary reason for creating a sin gle executive, Wilson reminded his colleagues, was so that one official would be “responsi ble” for nominations. John Rutledge of South Carolina, who chaired the Convention’s Com mittee on Detail, countered that granting “so great a power to any single person,” would cause “the people... [to] think we are lean ing toward monarchy.”7 Rutledge would re ceive two appointments from President George Washington to serve on the U.S. Supreme Court. He resigned his Associate Justice seat before the Court ever convened to accept ap pointment as the chiefjustice ofthe South Car olina Supreme Court. Congress failed to con firm his recess appointment to ChiefJustice in 1795, after he had already served five months in the center seat.8 Madison, too, opposed legislative selec tion ofjudges. “Beside the danger of intrigue and partiality,” the Father...
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Mar 5, 2023
Peni Sikivou + 2
Open Access
