A Partial Solution for the Federal Courts?
In my Administrative Law class today, we were discussing the appointment and removal of federal officers. Professor Mashaw proposed an interesting idea: that the Supreme Court, rather than the President and the Senate, should appoint lower federal judges.
Whether or not this is constitutional depends on whether federal judges are "Officers of the United States" or "inferior Officers". If they are the former, Article II Section 2 Clause 2 requires they be nominated by the President and approved by the Senate. If they're the latter, Congress can authorize various bodies to appoint them: the President acting alone, the heads of various Departments, a court (though, interestingly, not Congress itself).
So are they inferior officers, or officers? We've traditionally treated them as officers, requiring that they be appointed by the President with Senate approval. But I think an argument can be made for their inferiority.* After all, their actions are entirely reviewable by the Supreme Court, and they're bound to abide by the precedent set down by the Supreme Court. It's also not clear that after Morrison v. Olson there are a whole lot of non-inferior officers left. In that case, the Court held constitutional an Independent Counsel appointed by a special panel of judges and removable by same (or by the Attorney General, but by him only for cause). If a prosecutor effectively answerable to no-one is an "inferior officer", one wonders who, outside of cabinet secretaries and senior department officials, isn't.
I'm not saying it's definitely constitutional. Nor am I saying it's definitely a good idea. I can imagine some benefits. It would do away with Congressional gridlock that keeps district and circuit judgeships unfilled; the justices might be more interested in judicial temperament and competence than in ideology (then again...). But I can also imagine some costs. It might become too difficult to get new ideas onto the bench - justices might be inclined to appoint judges who think about the law as they do, creating a judicial echo chamber. On the other hand, it might make it too easy to get novel ideas on the bench. Many of the justices are former academics, who have friends and colleagues in the country's elite law schools, who would presumably form a major source of inputs for judgeships under the new system. Anyone who's spent a little time in the legal academy (even as a student) knows that many of those scholars (both on the right and the left) have ideas about the law that are a little... not ready for prime-time, lets say. There's also the risk that making the justices into the electors of the rest of the judiciary might make the Supreme Court nomination process even more politicized (if that's possible).
But it might be worth considering, especially as part of a larger project of reforming the federal judiciary.
*Man, I hope that choice of phrase doesn't cost me my dream clerkship in a year's time.
Whether or not this is constitutional depends on whether federal judges are "Officers of the United States" or "inferior Officers". If they are the former, Article II Section 2 Clause 2 requires they be nominated by the President and approved by the Senate. If they're the latter, Congress can authorize various bodies to appoint them: the President acting alone, the heads of various Departments, a court (though, interestingly, not Congress itself).
So are they inferior officers, or officers? We've traditionally treated them as officers, requiring that they be appointed by the President with Senate approval. But I think an argument can be made for their inferiority.* After all, their actions are entirely reviewable by the Supreme Court, and they're bound to abide by the precedent set down by the Supreme Court. It's also not clear that after Morrison v. Olson there are a whole lot of non-inferior officers left. In that case, the Court held constitutional an Independent Counsel appointed by a special panel of judges and removable by same (or by the Attorney General, but by him only for cause). If a prosecutor effectively answerable to no-one is an "inferior officer", one wonders who, outside of cabinet secretaries and senior department officials, isn't.
I'm not saying it's definitely constitutional. Nor am I saying it's definitely a good idea. I can imagine some benefits. It would do away with Congressional gridlock that keeps district and circuit judgeships unfilled; the justices might be more interested in judicial temperament and competence than in ideology (then again...). But I can also imagine some costs. It might become too difficult to get new ideas onto the bench - justices might be inclined to appoint judges who think about the law as they do, creating a judicial echo chamber. On the other hand, it might make it too easy to get novel ideas on the bench. Many of the justices are former academics, who have friends and colleagues in the country's elite law schools, who would presumably form a major source of inputs for judgeships under the new system. Anyone who's spent a little time in the legal academy (even as a student) knows that many of those scholars (both on the right and the left) have ideas about the law that are a little... not ready for prime-time, lets say. There's also the risk that making the justices into the electors of the rest of the judiciary might make the Supreme Court nomination process even more politicized (if that's possible).
But it might be worth considering, especially as part of a larger project of reforming the federal judiciary.
*Man, I hope that choice of phrase doesn't cost me my dream clerkship in a year's time.
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