My good friend Eric Claeys raises a serious constitutional challenge to my proposal, first floated in testimony before the U.S. House Judiciary Subcommittee on the Constitution last October (and a week later in the Wall Street Journal), suggesting that the Congress could enact legislation assigning the power to appoint lower court judges to the President alone if the Senate failed to act within 6 months.
As I understand Eric’s position (and the position of Steven Calabresi and Gary Lawson, on whom he relies, and presumably on Lee Liberman Otis, on whom they in turn rely--heady company, to be sure), although the Constitution in Article III expressly refers to lower courts as "inferior," we should treat all lower court judges as "principal" officers because the use of the phrase, "Courts of Law," in the appointments clause itself "strongly implies" that those courts are principal officers.
With all due respect to Eric’s thoughtful post, I think the explicit description in Article III of the lower courts as "inferior" needs to prevail over the implication he would like to draw, particularly when the implication is itself not compelling.
The Appointments Clause allows for the appointment of inferior officers to be vested "in the President alone, in the Courts of Law, or in the Heads of Departments." The "Courts of law" are not the same thing as the particular judges who occupy them, so I don’t think it a fair implication that the Appointments clause itself treats lower court judges as principal officers. (Particularly in contrast with department heads, which are expressly described elsewhere in Art. II (the Opinion Clause) as "principal Officers).
Moreover, the grammatical structure of the Appointments Clause itself suggests that lower court judges are inferior officers. The clause first lists Ambassadors, other public Ministers and Consuls, and Judges of the Supreme Court as officers who are to be appointed only after Senate confirmation. It then addes "and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law" -- such as all lower federal judges, to courts that Congress, under Art. III, "may from time to time ordain and establish." It is with respect to this latter category of "all other Officers" that the appointments clause confers upon Congress the ability to change the default method of appointment: "but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone," etc. (emphasis added).
Eric also contends that lower court judges must be treated as principal officers because they can themselves appoint other court employees and because they exercise the whole of Article III powers, often without appellate review. With respect to the former point, Eric has shifted the line an entire category. He claims that because clerks and bailiffs (whom he terms "inferior officers") can be appointed by judges, the judges must themselves be principal officers. But clerks and bailiffs are not officers -- they are employees, not covered by the appointments clause at all. Such employees are routinely "appointed" by inferior officers throughout government. If they are "inferior officers," as Eric contends, then we have been violating the Constitution for a very long time, because they are often hired ("appointed") by individual judges alone, not by the "Courts of Law," as the Constitution specifies, or worse, by the Court clerk.
The latter point is a closer call, but the fact that the decisions of lower court judges often do not get reviewed does not mean they are unreviewable. The decision by an appellate court, including the Supreme Court, NOT to review a lower court’s decision is itself a supervisory power. As the result, all lower court federal judges are supervised, more or less loosely as the need arises, by the Supreme Court. It is the potential for supervision, not the fact of actual supervision in any given case, that has weighed heavily in the Supreme Court’s recent Appointments Clause jurisprudence.
Although my proposal created quite a firestorm some time back on the Conlawprofs listserve (I was accused of playing "constitutional hardball"!), I am not alone in taking this position. See Akhil Amar, "A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction," 65 B.U.L. REV. 205, 235 n. 103 (1985); and William S. Dodge, "Congressional Control of Supreme Court Appellate Jurisdiction: Why the Original Jurisdiction Clause Suggests an "Essential Role," 100 YALE L.J. 1013, 1019 (1991).
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