Bush OLC, Act. 1

[Garrett Epps]

It's my understanding that today a judicial appointment is not complete until
the document is actually delivered.  I have heard an anecdote about Truman
tearing up such a document as the confirmed nominee looked on.  ge

"Richard D. Friedman" wrote:

> At 09:12 AM 1/30/2001 -0500, Michael Froomkin wrote:
>
> Why there should be an analogy between a pardon and a warrant is not clear
> >to me (nor indeed is the argument that service is a necessary element to
> >delivery of a pardon). This sounds more like an attempt to revive the
> >theory advanced in Marbury, that a judicial commission did not vest
> >without delivery. But in Marbury itself, didn't the Court totally reject
> >that idea in principle, resting its decision on the question of remedy
> >(mandamus) under sec. 13 of the Judiciary Act of 1789?
>
> I don't know about the analogy between a pardon and a warrant, but I think
> Marbury might be distinguishable.  There, the President nominated Marbury
> and the Senate confirmed him.  Marshall took the view that the commission
> wasn't the appointment but only conclusive evidence of the
> appointment.  Presumably the paper signed by Clinton constituted the
> pardon.  On the other hand, one could certainly take the view that, just as
> the appointment in Marbury was deemed complete when the President signed
> the commission, so a pardon should be deemed complete when the President
> signs it.
>
> On Michael Rappoport's suggestion for an amendment to curb lame-duck power
> -- it has always seemed to me that we elect and appoint our officers for
> terms and expect them to have the full powers of their offices until the
> moment their terms end.  It certainly raises prudential questions to take
> aggressive actions --such as impeaching the President -- during the lame
> duck period but I don't think we should turn them into legal questions.  If
> we think lame duck powers are overused, we should consider further
> shortening the lame duck period -- but perhaps not until more reliable
> voting methods are in nearly universal use.
>
> Rich Friedman

--
Garrett Epps
Associate Professor
University of Oregon School of Law
357 Knight Law Center
1221 University of Oregon
Eugene OR 97403

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  FAX: (541) 346-1564

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