184
Souter, J., concurring
of the Union, The Federalist No. 76, p. 510 (J. Cooke ed. 1961) (A. Hamilton), the delegates to the Philadelphia Convention could draw on their experiences with two flawed methods of appointment. They were aware of the pre-revolutionary " 'manipulation of official appointments' " by the Crown and its colonial governors, "one of the American revolutionary generation's greatest grievances against executive power." Freytag v. Commissioner, 501 U. S. 868, 883 (1991) (quoting G. Wood, The Creation of The American Republic 1776-1787, p. 79 (1969)). They were also aware of the postrevolutionary abuse by several state legislatures which, in reaction, had been given the sole power of appointment; by the time of the Convention the lodging of exclusive appointing authority in state legislatures " 'had become the principal source of division and faction in the states.' " Freytag, supra, at 904, and n. 4 (Scalia, J., concurring in part and concurring in judgment) (quoting Wood, supra, at 407).
With error and overcorrection behind them, the Framers came to appreciate the necessity of separating at least to some degree the power to create federal offices (a power they assumed would belong to Congress) from the power to fill them, and they came to see good reason for placing the initiative to appoint the most important federal officers in the single-person presidency, not the multimember Legislature. But the Framers also recognized that lodging the appointment power in the President alone would pose much the same risk as lodging it exclusively in Congress: the risk of "a[n] incautious or corrupt nomination." 2 M. Farrand, Records of the Federal Convention of 1787, p. 43 (rev. ed. 1937) (J. Madison) (hereinafter Farrand). Just as the Appointments Clause's grant to the President of the power to nominate principal officers would avert legislative despotism, its requirement of Senate confirmation would serve as an "excellent check" against Presidential missteps or wrongdoing.
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