Re: [Marxism] Originalist Alexander Hamilton on an independent judiciary

["Michael Hoover" <hooverm@xxxxxxxxxx>]

>>> Brian_Shannon@xxxxxxxxxxx 10/07/05 12:32 AM >>>
Here Hamilton reflects the common view at the time that the judiciary 
should be made up of legal thinkers, who are independent of the 
influence of both the legislature and the executive. 

"I have in another place remarked, that the [constitutional] 
convention, in the formation of this part of their plan, had departed 
from the model of the constitution of [New York] State, in favor of 
that of Massachusetts. Two strong reasons may be imagined for this 
preference. One is that the judges, who are to be the interpreters of 
the law, might receive an improper bias, from having given a previous 
opinion in their revisionary capacities; the other is that by being 
often associated with the Executive, they might be induced to embark 
too far in the political views of that magistrate, and thus a dangerous 
combination might by degrees be cemented between the executive and 
judiciary departments. It is impossible to keep the judges too distinct 
from every other avocation than that of expounding the laws. It is 
peculiarly dangerous to place them in a situation to be either 
corrupted or influenced by the Executive."
* Alexander Hamilton, The Federalist No. 74
Brian Shannon
<<<<<>>>>>

very minor point - above is from closing paragraph of #73...

hamilton's remarks reminds of what someone (don't recall who at
moment) called 'imagined judiciary'...

in contrast to framers' essentially convention-long debate over 
legislature, their 'invention' of judiciary was pretty easy, about
60% of delegates were lawyers (including hamilton and madison),
number of them had legal experience dating to pre-revolutionary
days, as such, one of their principle intentions was to simplify
complex/complicated british court system...

re. qualifications for appt, again, unlike legislature and executive,
framers set no minimums whatsoever for serving, nor did initial
congress when it created federal lower courts in 1789 judiciary
act, given that judges were to be appointed by prez with advice
and consent of senate (as check against political favoritism by
executive), maybe framers assumed that judges would be bit
"aged", appointed on merit, and that they would be men of
'virtue'...

Hamilton (the consummate elitist) tells us in #78 that judiciary 
would attract good judges because few would want the job, and
fewer still would fit *his* qualifications - knowledge and integrity...

washington set partisan tone by appointing federalists to all six 
original supreme court seats, he had made it known, beforehand, 
that folks interested in appointment should contact him, he made
list of those who took him up, then he discussed options with 
friends...

needless to say, washington was prepared, on day that
he signed judicary, he also sent all six s.c. appointments for which
act provided, federalist controlled senate confirmed each of 
them two days later, without debate...

most presidents have certainly shared washington's desire 
to appoint folks with kindred political/policy views (most
of these from same party), although not as common, some presidents 
have appointed friends (truman's cronyism apparently wasn't even
influenced by concern for policy consequences)...

sheldon goldman, in his book _picking federal  judges_, ranks three p's 
of nominations this way - political partisanship, policy preferences, 
personal relations...   michael hoover




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