The Constitution of the United States is best understood as the product of a balancing act between the Founders’ desire to avoid a tyranny and their recognition of the need to form a strong government that would ensure national stability and prosperity. The Appointments Clause of the Constitution fits within this framework nicely. Article II, Section 2, Clause II of the Constitution states that “the President…shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the supreme Court.” The clause establishes a clear division of power between the executive and legislative branches in nominating and confirming Supreme Court Justices. The president may not unilaterally appoint justices; he may only nominate them, and abide by the Senate’s verdict on them, whether confirmation or rejection. As the constitutional scholar John McGinnis writes, “the very grammar of the clause is telling: the act of nomination is separated from the act of appointment by a comma and a conjunction.” Whereas the president has the power to search for and select nominees, he must receive the consent of the Senate before they can assume office. During the drafting of the Constitution, the provision on the appointment of Supreme Court Justices and other officers changed considerably.
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As of June 5th, 1787, in the early days of the Constitutional Convention, the standing provision in the Constitution on the appointment of Justices of the Supreme Court stated that they would “be chosen by the National Legislature.” James Wilson of Pennsylvania opposed the appointment of justices by the Congress, claiming that “intrigue, partiality, and concealment” would be the ramifications of appointment by a large body, instead proposing judicial appointment by the president. John Rutledge of South Carolina defended appointment by Congress, saying that, if the president were to appoint justices, “the people will think we are leaning too much towards Monarchy.” James Madison opposed both the standing provision and Wilson’s proposal, and proposed that appointment be vested in the smaller and more exclusive Senate, rather than the entire Congress. The “National Legislature” clause was struck and replaced with a blank for further consideration. On July 18th, 1787, the issue of judicial appointments reemerged. Nathaniel Ghorum of Massachusetts proposed a compromise between the systems proposed by Wilson and Rutledge, in which “the Judges [would] be appointed by the [Executive] with the advice & consent of the [2nd] branch,” the presidency. Luther Martin of Maryland opposed Ghorum’s proposal, stated that the Senate, rather than the president, would be “best informed of characters” fit to be justices of the Supreme Court. Ghorum’s proposal was defeated, largely due to fears that judicial appointments would create an overpowered executive. Madison, altering his stance, proposed “that the executive should nominate, & such nominations should become appointments unless disagreed to by the Senate.” The committee, however, rejected this too before approving a motion to fill the blank left in June with Madison’s earlier clause on appointing justices through the Senate. In the final days of the convention, there was a startling shift. On September 7th, Gouverneur Morris of New York argued that on the matter of appointments, “as the President was to nominate, there would be responsibility, and as the Senate was to concur, there would be security.” A new clause, establishing the system of nomination by the president, confirmation
As of June 5th, 1787, in the early days of the Constitutional Convention, the standing provision in the Constitution on the appointment of Justices of the Supreme Court stated that they would “be chosen by the National Legislature.” James Wilson of Pennsylvania opposed the appointment of justices by the Congress, claiming that “intrigue, partiality, and concealment” would be the ramifications of appointment by a large body, instead proposing judicial appointment by the president. John Rutledge of South Carolina defended appointment by Congress, saying that, if the president were to appoint justices, “the people will think we are leaning too much towards Monarchy.” James Madison opposed both the standing provision and Wilson’s proposal, and proposed that appointment be vested in the smaller and more exclusive Senate, rather than the entire Congress. The “National Legislature” clause was struck and replaced with a blank for further consideration. On July 18th, 1787, the issue of judicial appointments reemerged. Nathaniel Ghorum of Massachusetts proposed a compromise between the systems proposed by Wilson and Rutledge, in which “the Judges [would] be appointed by the [Executive] with the advice & consent of the [2nd] branch,” the presidency. Luther Martin of Maryland opposed Ghorum’s proposal, stated that the Senate, rather than the president, would be “best informed of characters” fit to be justices of the Supreme Court. Ghorum’s proposal was defeated, largely due to fears that judicial appointments would create an overpowered executive. Madison, altering his stance, proposed “that the executive should nominate, & such nominations should become appointments unless disagreed to by the Senate.” The committee, however, rejected this too before approving a motion to fill the blank left in June with Madison’s earlier clause on appointing justices through the Senate. In the final days of the convention, there was a startling shift. On September 7th, Gouverneur Morris of New York argued that on the matter of appointments, “as the President was to nominate, there would be responsibility, and as the Senate was to concur, there would be security.” A new clause, establishing the system of nomination by the president, confirmation