Method of Choosing the Judiciary
[5 June 1787]
The clause of the ninth resolution of the Virginia Plan proposing that the judiciary be chosen by the national legislature was under consideration.
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, & a blank left to be hereafter filled on maturer reflection.1
1. Yates’s version:
“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” (Farrand, Records description begins Max Farrand, ed., The Records of the Federal Convention of 1787 (4 vols.; New Haven, 1911–37). description ends , I, 126).
“Mr. Maddison opposed—the Judges ought to be appointed by the Senetorial Branch of the Legislature. Moves that the words the national Legislature be struck out” (Strayer, Delegate from N.Y. description begins Joseph R. Strayer, ed., The Delegate from New York or Proceedings of the Federal Convention … from the Notes of John Lansing, Jr. (Princeton, 1939). description ends , p. 33).
“Madison—I am for farther Diliberation perhaps it will be best that the appointment shd. be by the Senate” (Farrand, Records description begins Max Farrand, ed., The Records of the Federal Convention of 1787 (4 vols.; New Haven, 1911–37). description ends , I, 128).
“Mr. Madison was for appointing the Judges by the Senate” (ibid., I, 128).