senate committee rejection of judicial candidates

Fri Mar 22 13:06:57 PST 2002

I think that another part of Nixon's holding may be applicable here:

The Nixon Court held that the impeachment process for judges is a
nonjusticiable political question because the courts should not be in a
position to control a process that is intended to check their own power. It
seems to me that the same is true of the judicial nomination process -which
is also, among other things, a legislative check on the judiciary.

Ilya Somin
-----Original Message-----
From: Trevor Morrison <twmorrison at HOTMAIL.COM>
To: CONLAWPROF at listserv.ucla.edu <CONLAWPROF at listserv.ucla.edu>
Date: Friday, March 22, 2002 12:58 PM
Subject: Re: senate committee rejection of judicial candidates

>Findlaw is currently running a piece by the Amar brothers disagreeing with
>the position articulated by Rep. Chabot.  They cite, inter alia, Nixon v.
>United States and Gary Lawson's 1999 piece in the Northwestern Law Review.
>
>See http://writ.news.findlaw.com/amar/20020322.html.
>
>Without meaning to advocate any particular answer to Professor Bezanson's
>question, I wonder whether cases like Nixon, which establish the general
>nonjusticiability of questions of Senate procedure, tell us much about what
>the Constitution actually requires of the Senate in this circumstance.  At
>most, doesn't Nixon just say that the constitutional requirements in this
>area, whatever they are, are not judicially enforceable?
>
>Trevor Morrison
>
>
>
>
>>From: "Clanton, Brad" <Brad.Clanton at MAIL.HOUSE.GOV>
>>Reply-To: Discussion list for con law professors
>><CONLAWPROF at listserv.ucla.edu>
>>To: CONLAWPROF at listserv.ucla.edu
>>Subject: Re: senate committee rejection of judicial candidates
>>Date: Fri, 22 Mar 2002 12:13:34 -0500
>>
>>Attached is the text of a letter sent just yesterday from Rep. Steve
>>Chabot,
>>Chairman of the Subcommittee on the Constitution in the House, to Sen.
>>Daschle on this issue.
>>
>>Brad Clanton
>>Chief Counsel
>>Subcommittee on the Constitution
>>362 Ford House Office Building
>>Washington, D.C. 20515
>>
>>
>>
>>
>>
>>
>>
>>March 21, 2002
>>
>>
>>The Honorable Tom Daschle
>>Majority Leader
>>United States Senate
>>825 Hart Senate Office Building
>>Washington, DC 20510
>>
>>
>>Dear Senator Daschle,
>>
>>
>>         President Bush has asked you to allow the full Senate to vote on
>>the
>>nomination of U.S. District Judge Charles W. Pickering to a seat on the
>>Court of Appeals for the Fifth Circuit despite the refusal of the Senate
>>Judiciary Committee's 10 Democratic members to vote the nomination out to
>>the full Senate.  At a March 14, 2002, press conference, you rejected the
>>President's request because doing so, you said, would "break a
200-year-old
>>precedent."
>>
>>         The precedent to which you refer is unclear.  The Constitution,
>>however, is not.
>>
>>         Article II, Section 2 of the Constitution provides that the
>>President "shall nominate, and by and with the Advice and Consent of the
>>Senate, shall appoint ... Judges of the supreme Court, and all other
>>Officers of the United States ...."
>>
>>         If there were any room for doubt regarding the role of the full
>>Senate in confirming the President's judicial nominees, Alexander
Hamilton,
>>in Federalist Paper No. 76, makes clear that the President is "bound to
>>submit the propriety of his choice to the discussion and determination of
a
>>different and independent body, and that body an entire branch of the
>>legislature."  Indeed, Hamilton elsewhere and repeatedly refers to the
>>Senate's role in approving judicial nominees as involving the "whole body"
>>of the Senate and, in Federalist Paper No. 77, as requiring the judgment
>>of,
>>again, "an entire branch of the legislature."
>>
>>         Following the committee's failure to vote out Judge Pickering's
>>nomination to the full Senate, Senate Judiciary Committee Chairman Patrick
>>Leahy was quoted as saying "We have made the Constitution work and we made
>>this committee work."  However, granting a committee of a much larger
>>legislative body the final decision on nominations was explicitly rejected
>>by the Founding Fathers.  For example, while the States considered
>>ratifying
>>the federal constitution, final approval of nominations by the governor of
>>New York rested with a small council consisting of a handful of persons.
>>That approach was singled out for the strongest of criticisms in
Federalist
>>Paper No. 77, in which Hamilton warned that, under such a regime, "[e]very
>>mere council of appointment, however constituted, will be a conclave, in
>>which cabal and intrigue will have their full scope."
>>
>>         Further, the Senate adopted the following resolution in 1789 for
>>addressing presidential nominations:
>>
>>         Resolved, That when nominations shall be made in writing by the
>>President of the United States to the Senate, a future day shall be
>>assigned, unless the Senate unanimously direct otherwise, for taking them
>>into consideration .... [A]ll questions shall be put by the President of
>>the
>>Senate ... and the Senators shall signify their assent or dissent by
>>answering, viva voce, ay or no.
>>
>>         1 Exec. J. 19.
>>
>>         This resolution, so early on in the Senate's existence, embodied
>>the
>>strong commitment the Senate once had to fulfill its constitutional role
by
>>bringing presidential nominations before the full body of the Senate for a
>>vote.  Modern scholarly observers have also long supported this principle.
>>Harvard Law School Professor Laurence Tribe, for example, at page 131 of
>>his
>>book God Save This Honorable Court (1985) has written that "what matters
>>most is that one hundred Senators, of diverse backgrounds and
philosophies"
>>vote on the confirmation of judicial nominees.
>>
>>         With the Constitution and the wisdom of the Founding Father in
>>mind,
>>I urge you to bring the President's judicial nominees to the floor of the
>>Senate for a vote by the entire body.
>>
>>
>>                                                         Sincerely,
>>
>>
>>                                                         Steve Chabot
>>                                                         Chairman
>>                                                         Subcommittee on
>>the
>>Constitution
>>
>
>
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