Strengthening Constitutional Self-Government

No Left Turns

NYTimes Befouls Itself Re Estrada

Alt’s perceptive piece calls to mind of course the whole problem of the Judiciary Committee (let alone the NY Times) making the call on who gets to become a judge. It is a clear violation of the separation of powers. A committee of the Senate cannot personate the entire Senate. A grave constitutional responsibility cannot be delegated to another body, without or within the Senate. This calls to mind the whole problem of fragmentation of power in Congress, in the committees and subcommittees. Whether the new Republican majorities in both Houses will use their powers wisely (often meaning ruthlessly)remains to be seen. Can this Congress control itself and control the bureaucracy?

Discussions - 1 Comment

I agree with you in principle, but the constitutional merits of your claim are questionable. For example, in impeaching Federal judges it is common for the trial to be conducted by Committee with the Senate voting based on the recommendation of the Committee. One judge challenged the practice because the constitution provides that the whole senate should try the case and hear the evidence.

Despite the fact that the constitution says that the Senate shall have the "sole power to try all impeachments" the Supreme Court rejected Judge Nixon’s claim and held that "Petitioner’s interpretation would bring into judicial purview not merely the sort of claim made by petitioner, but other similar claims based on the conclusion that the word "Senate" has imposed by implication limitations on procedures which the Senate might adopt. Such limitations would be inconsistent with the construction of the Clause as a whole . . . ." WALTER L. NIXON, PETITIONER v. UNITED STATES, 506 U.S. 224 (1993).

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