Confirmation logjam

[Allan Ides]

I'm with Robin on this.  Actually, even calling it a "logjam" distorts
the issue.  One party's logjam is another's opportunity to force the
appointing power to take its interests into consideration.  The
Republicans did this during the Clinton administration and the
Democrats are doing it now.  That's politics.  It is possible that the
current system forces the President over the long run, and regardless
of party, to select less ideologically driven judges or least to have a
slate of selections that does not pack the courts with one particular
perspective. In addtion, regardless of where one comes out on the text
of the appointsment power, I'd be troubled with any measure that puts
even more power in the already too powerful Executive Branch, and I
hold this view regardless of which party is in power.

Allan Ides
----- Original Message -----
From: Robin Charlow <LAWRDC at MAIL1.HOFSTRA.EDU>
Date: Sunday, October 20, 2002 9:13 am
Subject: Re: Confirmation logjam

> -- John Eastman wrote:  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.
> __________________     I'm no fan of the logjam, but why do you
> consider this "abuse" of the advice and consent power?  It seems
> to me presupposed that each side is supposed to use whatever means
> it has at its disposal to try to get its way on issues about which
> it feels strongly.  When and if both sides perceive that this is
> creating a larger problem that must be addressed, presumaby
> they'll come to a political resolution.  I'm not suggesting this
> will happen anytime soon, but perhaps that's because, outside of
> the legal system itself, the confirmation logjam simply does not
> register as a crisis.
>
> -----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 in 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
>
>
>
>