Confirmation logjam

[Tobias Wolff]

John Eastman writes:

> In response to Gary Allison's post below, last I checked, the American
> people did give control of all political branches of government to the
> Republicans -- the current division resulted from a certain Senator from
> Vermont who switched parties AFTER the election.
>
> But no matter

Actually, last I checked, a plurality of the American people gave control
of the Presidency to the Democratic party, and the Electoral College (at
best) or a certain group of Supreme Court Justices (at worst) conferred
that office upon the Republic party AFTER the election.

But no matter.

I find Marty Lederman's discussion of the particular features of "the
judicial power" (as explicated by Justice Souter) most convincing in this
discussion.  The presumption of the "inferior officer" Clause, as I
understand it, is that such officers exercise policymaking authority that
is properly subject to alteration, on political grounds, by superiors whose
function is, indeed, to exercise superior policymaking authority.  Inferior
officers, in other words, exercise authority that is substantively as well
as structurally inferior.  Their superiors need not determine that they
have made an "incorrect" decision in order to supersede their authority; it
is enough that their superiors have a different political agenda.

Federal judges, in contrast, all exercise the same formal "power" -- the
power to interpret and apply the legal and constitutional principles that
policy makers have enacted.  When judges engage in appellate review, it is
(as a formal matter) to correct errors or police abuses of discretion, not
to substitute alternative views about the most desirable policies to
enforce.  Lower federal judges, in other words, exercise the same judicial
power that the Supreme Court does; they simply do so in a structurally
inferior posture, i.e. one that is subject to error correction.

To use a simple example, a federal district court has the undoubted power
to enjoin the Supreme Court from implementing a rule to exclude black
lawyers from advocating before the bar, even though, for structural
reasons, that injunction would not be final.  An inferior officer has no
analogous power to order her superiors (or the President) to change a
policy decision.

I do not mean to espouse a naive view that judges never engage in
policy-like decisionmaking.  (In the case of federal common law, they do so
openly.)  But it seems to me that, in order for John to press his argument
seriously, he must explicitly embrace the notion that it is the expected
function of lower federal judges to make decisions based on their personal
views about wise governmental policy, and the expected function of the
Supreme Court to serve as ultimate arbiter of those policy decisions.
Since I also understand John to be intensely critical of judges whom he
believes to be engaged in such policy-driven decisionmaking, his proposal
seems to suffer from a serious internal contradiction.

-- Tobias