makers of the constitution fully realized that the adjustment
of the power of appointment to office required careful
consideration. From their youth up they had seen the rivalry
for office, they had felt the influence of the patronage, in the
politics of colony and state. John Adams complained that
Governor Hutchinson of Massachusetts passed over proper
candidates in order to advance members of his own family; and, while this particular charge may be unjust, it is certainly true that in most cases colonial governors owed their positions wholly to favoritism, and that one of their chief duties was to use the offices within their gift for the upbuilding of a British party. All Americans were familiar, moreover, with the power wielded in England by the “King's Friends,” the most mighty faction ever based almost solely on the distribution of offices, and the source to which the colonies attributed much of the evil treatment which had estranged them from the mother country. While they knew, however, the evil possibilities of the patronage, they regarded the disease as peculiarly characteristic of monarchy, and were unacquainted with the new conditions presented by a democratic form of government.
A mechanical system for the choice of public servants existed
at that time in no considerable country except China, to whose
example the convention at Philadelphia was not likely to turn;
nor in the ancient civilizations could any precedent for such a
scheme be found. The responsibility for appointments must
be personal, and the question to be decided was, in what person
or persons it should reside. The national civil service under
the Confederation was so small, and the conditions were so
exceptional, that the experience to be drawn from its history was
slight. It was practically certain, moreover, even before the
convention of 1787 met, that the old system must be changed. The call for a constitution was largely the result of a reaction against the extreme democracy and decentralization of the Revolution; and it is not strange, therefore, to find in the earliest plans for “a more perfect union” the proposal to transfer the appointing power from Congress to the executive. In other words, the question of the civil service was part and parcel of the more general problem of the extent of the executive power, and was itself scarcely drawn into debate.
While it was thus tacitly admitted that the power of appointment
should be taken from the legislature, the feeling was by
no means universal that the executive could be safely intrusted
with it. The idea of a council, one of whose duties should be
to aid and limit the president in making appointments, was
pertinaciously pressed. Its chief supporter was George Mason, who could point for authority to the constitutions of several states, and particularly to that of New York, which provided for a special council of appointment. It was urged, however, that the Senate could perform these functions; and it was said by Davie of North Carolina that this proposition was strongly supported by the smaller states because of their equal representation in that body. Opposition arose from those who feared the power, not of the executive alone, but of the whole central government; and Dickinson, supported by Randolph, suggested that officers be selected by the president with the advice and consent of the Senate, “except where by law the appointment shall be vested in the Legislatures or Executives of the several States.” This plan, so foreign to the spirit of the convention, was dropped by unanimous consent; and the two following clauses were finally framed, and have stood unchanged to the present time.
The president “shall nominate, and, by and with the advice
and consent of the Senate, shall appoint ambassadors, other
public ministers and consuls, judges of the Supreme Court, and
all other officers of the United States, whose appointments are
not herein otherwise provided for, and which shall be established
by law; but the Congress may by law vest the appointment of
such inferior officers as they think proper in the president alone, in the courts of law, or in the heads of departments.
“The President shall have power to fill up all vacancies that
may happen during the recess of the Senate, by granting
commissions which shall expire at the end of their next session.”
