James E. Pfander (Northwestern University School of Law) has posted The Chief or the Court: Article II and the Appointment of Inferior Judicial Officers (Northwestern University Law Review, Vol. 107, No. 3, 2013) on SSRN. Here is the abstract:
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Each year, the Chief Justice of the United States makes a number of appointments to offices within the Article III judicial establishment. On its face, such a Chief-based appointment practice seems hard to square with the text of Article II, which provides for the appointment of inferior officers by the “courts of law.” Scholars have noted the switch from a court-based to a Chief-based appointment system, but generally regard the Chief’s authority as constitutionally benign.
This Essay explores the origins of the Constitution’s choice of the “courts” as the repository of appointment power. The decision was made against the backdrop of an eighteenth century English and colonial judicial practice in which the perquisites of office for chief judges included fees collected from litigants and proceeds from the sale of inferior offices. By switching to salary-paid judges and a court-based appointment system, the framers may have intended to end the corrupting influence of fees and office sales and to create a more transparent, meritocratic process. Certainly when Congress established the first federal court system, it was careful to assign the appointment power to the courts themselves. And when Chief Justice John Jay presided over the Court’s first session in February 1790, he refused to make any appointments himself, insisting instead that the task was one for the Court to undertake after consultation with all the Justices.
This Essay argues that the Court should reclaim its role as the designated recipient of the power to appoint inferior officers within the Article III bureaucracy. Article III creates a single supreme court, places it atop the federal judicial hierarchy, and requires all other courts and tribunals to remain inferior to that court. Article II underscores the Court’s special role by providing for the assignment of appointment power to “courts of law.” While the Chief might play a role as the Court’s designee, the Court itself has a constitutional duty to oversee the appointment of inferior officers.
This looks quite interesting. Textually, it is hard to justify placing the appointment of inferior officers in the Chief Justice when the Constitution says only Courts of Law can have the power. Pfander appears to provide an historical story to add to the textual one. This promises to be another important article on the original meaning of the judiciary by James Pfander.
It should be no surprise that there has been carelessness about where the judicial appointment power is located, because that has also been the case concerning executive agencies. A related, although distinct, problem is how the Head of a Department should be defined concerning the appointment of inferior officers in an executive branch commission. Is the head of the department of the Federal Trade Commission for purposes of the Appointments Clause the Chair or is it the Commission as a whole? My impression is that for commissions the chair has been the given the authority most often, but sometimes the commission is given the authority. It cannot be both.
It would appear that the question should turn on the powers that the chair and the commission exercise. If the principal powers are given to the commission as a whole, it is hard to see the Head of the Department being the chair.
Posted at 8:15 AM