Confirmation logjam

[Mae Kuykendall]

I had a thought similar to that of Vasan Kesavan, as follows:

I hope not to resist novel re-interpretations of text long left unattended by careful readers.  Nonetheless, I find that the natural reading of the entire clause is that the Constitution mandates advice and consent for some set of officers (other than Ambassadors, other public Ministers and consuls, and Judges of the supreme court), which the clause refers to as "all other Officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law."  The exception phrase, "but the Congress may by law vest the appointment of such inferior Officers, as they may think proper, in the President alone, in the Courts of Law, or in the Heads of Departments" functions more as a supplement than a qualification.  If seen as a qualification, the clause could, if applied vigorously, end the advice and consent process for all officers other than those specifically named.  Nonetheless, if one were to accept the reading suggested, it does not necessarily follow that the natural place to vest the sole appointment power for federal judges would be the President.  Rather, the Courts of Law would seem to be the more logical candidate and even the better policy choice.  Perhaps we are due for a professionally trained corps of federal judges, mentored and appointed by the Judicial Conference.  The Judicial Conference and the related bodies of the Courts of Law, such as the Federal Judicial Center, already play a considerable role in training and even supervising federal judges.  While I cannot help but think that the idea of any reading except the one that has been applied since the creation of the lower federal courts is most unlikely, if there is a basis for a departure from the long established reading, the next logical inference as a matter of the text is that the Courts of Law should name the judges, who have been deemed to be their "inferior" Officers. 

Mae Kuykendall




>>> Kesavan at FRANCISCOPARTNERS.COM 10/20/02 04:15PM >>>
I'd like to raise another issue for discussion which no one has yet mentioned:

Isn't the "but" part of the Appointments Clause best read to prohibit *inter-branch* appointments?

One reason, I submit, why the Independent Counsel statute was unconstitutional is because it allowed Article III judges to pick Article II officers.

On this line of reasoning, the Congress and the President couldn't agree by statute to allow the President to pick Article III judges. If Article III judges on lower courts are inferior officers (I am not convinced that judges on inferior courts are inferior officers, but I'll leave this point for later), then at most the appointment of those officers might be vested in the "Courts of Law." One image here is the Justices of the U.S. Supreme Court selecting "inferior" members of "their house."

Vasan Kesavan


-----Original Message-----
From: Eastman, John <jeastman at CHAPMAN.EDU>
To: CONLAWPROF at listserv.ucla.edu <CONLAWPROF at listserv.ucla.edu>
Sent: Fri Oct 18 14:55:56 2002
Subject:      Confirmation logjam

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



P.S.  The op-ed is available at http://online.wsj.com/article/0,,SB1034814802784273388-search,00.html?collection=wsjie/30day <http://online.wsj.com/article/0,,SB1034814802784273388-search,00.html?collection=wsjie/30day&vql-string=%28%28Eastman%29%3Cin%3E%28article%2Dbody%29%3Cor%3E%28article%2Ddoc%2Dtype%3CCONTAINS%3EEastman%29%29> &vql-string=%28%28Eastman%29%3Cin%3E%28article%2Dbody%29%3Cor%3E%28article%2Ddoc%2Dtype%3CCONTAINS%3EEastman%29%29 for Wall Street Journal subscribers.
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