Confirmation Logjam

[Brian Kalt]

I thought that the proposal was interesting, and it forced me to re-consider my preconception that the constitution required Senate consent to lower court appointments.

I cannot imagine a world, however, in which the Senate gives up this prerogative, as it would have to for such legislation to pass.

>>> LISTSERV at listserv.ucla.edu 10/19/02 03:01 AM >>>

The op-ed is now available on line at http://claremont.org/projects/jurisprudence/021018eastman.html



I'd be happy to consider a retroactive application of the legislation, but Merrick Garland and Roger Gregory, two of the three main cases of Republican "obstruction," are already on the bench, of course.  Perhaps it would be better to have the legislation only take effect after the next election in 2004 * that way, it can stand on its merits, without petty political calculations getting in the way.



My proposal is not designed to benefit one party or the other, as Marty Lederman seems to suggest.  It is, rather, to prevent abuse of the advice and consent power for the future.  If the Senate has the votes to stop a nominee, let it do so, with every individual Senator casting a roll-call vote.  I think it pretty clear that many of the people who have not yet made it out of committee command majority support in the Senate.



-- John Eastman









-----Original Message-----
From: LoAndEd at AOL.COM [mailto:LoAndEd at AOL.COM]
Sent: Friday, October 18, 2002 6:10 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Confirmation logjam



Funny, I don't recall anyone making such a creative proposal when the Senate Judiciary held up numerous Clinton appointments for years on end.  But then, perhaps I just wasn't paying close enough attention to the throngs of outraged academics who were then engaged n their very vocal, concerted public campaign against "logjams" resulting from Judicary Committee footdragging.  Professor Eastman presumably would have no (nonconstitutional) objection to making his proposed statute apply retroactively to, say, all living persons not currently serving on the federal judiciary whose nominations were never voted upon after a wait of at least six months post-nomination.  That sure would address forthwith the "judge shortage" crisis!  (In fairness to Prof. Eastman, I must confess that I have not read his op/ed (it's not available to nonsubscribers online, correct?), and therefore do not know what, if anything, he had to say about the retroactivity/"effective date" question.)

Accordingly, would those listmembers who opt to address the constitutionality of Professor Eastman's proposal also please address whether its retroactive application would be constitutional?


Thanks in advance --

Marty Lederman



John Eastman writes:





Yesterday's Wall Street Journal carried an op-ed in which I propose legislation that would vest the appointment of lower court judges in the President alone whenever the Senate has failed to act within six months on a judicial nomination.  I initially made the proposal in a hearing before the House Judiciary Committee subcommittee on the Constitution last week.  I'd be curious to hear what folks on this list think about the proposal.



John Eastman

Chapman University School of Law