"The danger of judicial encroachments on the legislative authority has been often mentioned ... Although misconstructions ... may now and then happen, they can never be so extensive as to amount to an inconvenience or ... affect the order of the political system.... This conclusion is greatly fortified by the important constitutional check on the judiciary--that one part of the legislative body can impeach judges and the other, try them. This is alone a complete security. There never can be danger that judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the legislative body while it could punish their presumption by removing them from office." Federalist Paper #81[9]
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Judicial Appointments
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 the 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." Article 1, Section 2, United States Constitution
Constitutionally, the only judges that have to have the advice and consent of Senate are the Supreme Court Judges. The legislature has the power to allow the president to make all other judicial appointments. Doing this really would be a nuclear option!!
Why does the Constitution give the President the power to nominate/appoint judges?
76[4] "...I'll put down the rule that one man of discernment can do a better job analyzing the qualities for specific offices than a group of men of equal, or even superior, discernment.
76[5] "The sole, undivided responsibility of one man will produce a keener sense of duty and regard to reputation. He will feel a stronger obligation and be more interested in carefully investigating the qualities required to fill the offices. And he will impartially prefer the persons who may have the most qualifications.
"He will have fewer personal attachments to gratify than a group of men who each may have an equal number. So, he will be much less liable to be misled by friendship and affection. A single, well-directed man cannot be distracted and warped by the diversity of views, feelings, and interests that frequently distract and warp the resolution of a collective body.
"Nothing agitates the passions of mankind like personal considerations, whether related to ourselves or others, who are to be the objects of our choice or preference. Hence, every time a group of men exercise the power of appointing to offices, we must expect to see a full display of all private and party likes and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the group. The choice made under such circumstances will be the result either of a victory gained by one party over the other or a compromise between the parties. In either case, the intrinsic merit of the candidate will often not be considered.
"In the case of a victory of one party over the other, the qualifications best adapted to uniting the partys votes will be more important than the qualifications that fit the person to the job. If a compromise, the coalition will commonly come up with a trade-off: 'Give us the man we wish for this office, and you can have the one you wish for that.' This will usually be the bargain. Public good will rarely be the primary objective of either party victories or party negotiations."
77[7] "Every appointment council, however constituted, will be a conclave in which cabal and intrigue would have their full scope. Without an unwarrantable increased expense, their number cannot be large enough to exclude easy conspiracy..."
77[8] "I couldn't properly conclude my observations on the subject of appointments without mentioning ... idea ... of uniting the House of Representatives in the power of making them. ... A body so fluctuating and ... so numerous, can never be deemed proper for the exercise of that power."
What's wrong with demanding a super-majority (as in the current case of judicial nominations)?
22[7] "...This contradicts the fundamental maxim of republican government, which is, the will of the majority should prevail....Giving up their political majority rights would be not only contrary to the love of power but even a sacrifice of equality. It is neither rational to expect the first, nor just to require the last..."
22[9] "But this is not all. What may at first be seen as a remedy, is, in reality, a poison. Giving a minority a negative over the majority (the consequence of requiring more than a majority for a decision), tends to subordinate the feelings of the greater number to those of the lesser...
"In practice, this refinement [requiring a super majority] has the reverse effect of what is expected from the theory. The necessity of unanimity in public bodies, or something approaching it, was based on the supposition that it would contribute to security. But in reality, it embarrasses the administration, destroys the governments energy, substituting the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junta to the regular deliberations and decisions of a respectable majority.
"In national emergencies, when the goodness or badness, the weakness or strength of government is of the greatest importance, action is commonly necessary. Public business must, one way or another, go forward. If a stubborn minority controls the opinion of a majority about the best way of conducting business, to get something done, the majority must conform to the views of the minority; thus, the smaller number will overrule the greater and set a tone to the national proceedings. The reality will include tedious delays, continual negotiation and intrigue, and contemptible compromise of the public good.
"In such a system, it is good when compromises are possible. But some occasions wont permit accommodation, leaving legislative solutions injuriously suspended or fatally defeated. The inability to obtain the necessary number of concurring votes often maintains a state of governmental inaction. The situation creates weakness, sometimes bordering on anarchy.
22[10] "It's easy to see that this principle provides greater opportunity for both foreign corruption and domestic faction than having a majority decide, even though the opposite has been assumed. This mistake arises from not carefully considering the consequences from obstruction of governmental progress on certain critical issues.
"While it's true that when the constitution requires the concurrence of a large number to pass any national act, we may be satisfied that nothing improper will be likely to be done. But we forget how much good may be prevented and ill produced because doing what may be necessary is hindered, keeping affairs in the same unfavorable positions.
22[11] "For instance, suppose we were allies with one foreign nation against another. Suppose our situation demanded peace but the interest or ambition of our ally promoted war, possibly justifying our making separate terms. In this situation, it would be easier for our ally to use bribes and intrigues to tie the hands of our government from making peace if a vote of two-thirds were required rather than a simple majority. In the first case, a smaller number (34%) would need to be corrupted; in the latter, a greater number (51%)."
75[6] "The last objection is to substitute the proportion of two-thirds of all members of the Senate, to that of two-thirds of the members present.
"We have discussed that when more than the majority of any body is required to pass resolutions, it tends to impede governmental operations. And it tends to indirectly subject the will of the majority to that of the minority...
"If two thirds of the whole number of members were required, in many cases it would be, from the non-attendance of some members, the same as requiring unanimity. The history of every political body using this principle is a history of impotence, perplexity, and disorder. Proofs might be adduced from the examples of the Roman Tribune, the Polish Diet, and the States-General of the Netherlands, if an example at home didnt make foreign precedents unnecessary.
75[7] "To require a fixed proportion of the whole Senate would probably not add to the advantages of requiring a proportion of the attending members.
"Requiring a specific number to pass every resolution diminishes the reasons for punctual attendance. But making the legal authority of the body dependent on a proportion that can vary by the absence or presence of a single member has the contrary effect. Promoting punctuality tends to keep the body complete. It is likely that Senate resolutions would be decided by as many members in this case as if two thirds of all members were required, with far fewer reasons for delay."
Federal Judiciary Enforces US Constitution
78[9] "The complete independence of the courts of justice is particularly essential in a limited Constitution. By a limited Constitution, I mean" the legislative authority is limited.
"Limitations ... can only be preserved in practice through courts of justice with the duty to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of specific rights or privileges would amount to nothing."
78[10] "The courts will have the right to pronounce legislative acts void because they are contrary to the Constitution."
80[2] "...the judicial authority of the Union should extend to several types of cases:
"1. Cases that concern the execution of the provisions in the Constitution..."
80[3] "The first type seems obvious. There should always be a constitutional method of giving efficacy to constitutional provisions. What, for instance, would be the point of having restrictions on the authority of State legislatures if the Constitution didn't provide a method of enforcing them?...
"...There must be either a federal power to veto State laws or an authority in the federal courts to overrule any clear violation of the Unions Constitution. I cant think of any other methods. The convention seems to have thought the latter preferable to the former and, I assume, it will be more agreeable to the States."
80[12] "These are the principles that should regulate the construction of the federal judiciary. Now we will test, using these principles, its powers, according to the Constitution.
"The federal judiciary is to decide all cases in law and equity arising under the Constitution, the laws of the United States,..."
80[13] "First. To all cases in law and equity arising under the Constitution and the laws of the United States. This corresponds with the two first types of cases, enumerated above and shown to be proper jurisdictions of the United States.
"It has been asked what is meant by 'cases arising under the Constitution,' as distinct from those 'arising under the laws of the United States'?
"The difference has been already explained. All the restrictions on the authority of the State legislatures furnish examples of it. They are not, for instance, to emit paper money. This interdiction comes from the Constitution and will have no connection with any law of the United States. If paper money, notwithstanding, is emitted, the controversies concerning it would be cases arising under the Constitution and not the laws of the United States, in the ordinary meaning of those terms. This serves as an example."
78[12] "It may be argued that the legislative body is the constitutional judge of its own powers and that the other branches must accept the interpretation it puts on the powers. But this is not a logical conclusion from any provision in the Constitution.
"It can't be supposed that the Constitution intends to enable the peoples representatives to substitute their will for that of their constituents. It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature. Among other things, the courts keep the legislature within the limits assigned to their authority.
"Interpretation of the laws is the proper and specific province of the courts. A constitution is, in fact and must be regarded by the judges as, a fundamental law. Therefore, the courts ascertain its meaning, as well as the meaning of specific legislative acts. If the two should happen to have an irreconcilable variance, the one with the superior obligation and validity should, of course, be preferred.
"Or, in other words, the Constitution should be preferred over the statute, the intention of the people to the intention of their agents."
Constitution doesn't specifically say the Supreme Court decides constitutionality of laws.
81[5] "In the first place, not a syllable in the proposed Constitution directly empowers the national courts to construe the laws according to the spirit of the Constitution. Nor does it give them any greater latitude in this respect than may be claimed by the courts of every State.
"I admit that the Constitution should be the standard of construction for the laws and that wherever there is an evident opposition, the Constitution should take precedence over the laws. But this doctrine is not deducible from anything in the proposed Constitution, but from the general theory of a limited constitution. And, as far as this doctrine is true, it applies to most, if not to all, the State governments.
"Therefore, any objection to the federal judicature based on this reason can be made against the local judicatures in general. And it will not help to condemn every constitution that attempts to set bounds to legislative discretion."
Someone has to decide constitutionality of laws. If the federal court didnt do it, who would? Not the legislature.
81[6] "...Even if the legislature was only partly responsible for passing bad laws, we could rarely expect that the same branch would have the disposition to temper and moderate them in the application. The same spirit that made them would probably interpret them.
"There would be even less chance that men who had infringed the Constitution in the character of legislators would be disposed to repair the breach when they acted as judges.
"...Since legislatures naturally divide according to party, there is reason to fear that the pestilential breath of faction may poison the fountains of justice. The habit of being continually marshaled on opposite sides will probably stifle the voice both of law and of equity."
81[8] "Secondly, the future legislature of the United States will be able to overrule objectionable decisions just as the Parliament of Great Britain and the legislatures of the States do. The theory authorizes the revisal of a judicial sentence by a legislative act. It is not forbidden in the proposed Constitution, any more than in either Britain or the States. In both, the impropriety of the thing, on the general principles of law and reason, is the sole obstacle.
"A legislature, without exceeding its authority, cannot reverse a determination once made in a specific case. But it can prescribe a new rule for future cases. This is the principle. And it applies in all its consequences, exactly in the same manner and extent, to the State governments, as to the national government now under consideration. Not the least difference can be pointed out in any view of the subject.
Impeachment of judges
79[4] "To assure judges will act responsibly, they are liable to be impeached by the House of Representatives and tried by the Senate,,,"
