Method of Choosing the Judiciary
[21 July 1787]
JM had moved on 18 July that the national judiciary should be nominated by the executive and “such nomination should become an appointment if not disagreed to … by ⅔ of the 2d. branch” (Ms [DLC]). After being postponed, debate on this motion was now resumed.
Mr. Madison stated as his reasons for the motion. 1 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 ⅔ 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 there 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 the Northern States, a perpetual ground of jealousy & discontent would be furnished to the Southern States.1
1. After Gerry objected to the two-thirds requirement, JM said “that he was not anxious that ⅔ should be necessary to disagree to a nomination. He had given this form to his motion cheifly 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” (ibid.).