The Chief Justice, the Appointment of Inferior Officers, and the "Court of Law" Requirement

By Pfander, James E. | Northwestern University Law Review, April 1, 2013 | Go to article overview

The Chief Justice, the Appointment of Inferior Officers, and the "Court of Law" Requirement


Pfander, James E., Northwestern University Law Review


ABSTRACT-In addition to his judicial duties, the Chief Justice presides over a sprawling judicial bureaucracy. Each year, the Chief fills positions within that bureaucracy, designating Article III judges to various specialty courts and appointing such officers as the director of the Administrative Office of the U.S. Courts. Although critics worry that the Chief may use his appointment role to shape Third Branch policy unduly, scholars view the role as constitutionally benign.

This Article questions the Chief's role. The Constitution authorizes Congress to vest the appointment of inferior officers in the "courts of law" but not the Chief Justice. History teaches that this was a deliberate choice (to curtail the corrupting influence of patronage powers) and one to which the nation's first Chief, John Jay, scrupulously adhered. After tracing the decline of the early practice, the Article proposes the return to a court-based appointment model.

INTRODUCTION

Each year, the Chief Justice of the United States makes a variety of appointments to offices in the Article III bureaucracy, filling positions high and low.1 In 2011, for example, Chief Justice John G. Roberts participated in the appointment of a new director of the Federal Judicial Center (FJC), the research and teaching arm of the federal judiciary.2 And with the 2011 retirement of the head of the Administrative Office (AO) of the United States Courts, the Chief Justice bore sole responsibility for the appointment of a successor.3 Apart from these bureaucratic figures, the Chief Justice also selects the Article III judges, magistrates, and bankruptcy judges who serve on the various committees of the Judicial Conference of the United States, the policymaking body of the federal judiciary over which he presides at biannual meetings. Finally, the Chief chooses sitting judges to staff specialty courts, such as the courts established in the Foreign Intelligence Surveillance Act (FISA). Whatever their influence on the resolution of the cases that come before specialized courts, the Chief s appointment powers may give him a significant hand in the development of Judicial Branch policy.4

Despite the familiarity of the practice, the power of Congress to vest the Chief with appointment authority poses a constitutional puzzle. After setting a default rule of presidential nomination and appointment, by and with the advice and consent of the Senate, Article II empowers Congress to vest the appointment of "inferior" officers in the President acting alone, in the heads of departments, and in the "Courts of Law."5 Notably, Article II makes no provision for the assignment of appointment authority to the Chief Justice, notwithstanding the fact that the Constitution elsewhere recognizes the existence of that official (in the provision that calls for the Chief to preside at the Senate's trial of presidential impeachments).6 So long as the Judicial Branch offices in question qualify as "inferior" within the meaning of Article II, the Constitution appears to foreclose the vesting of appointment authority in the Chief and to require its vesting in the Court instead.7

Although scholars have criticized modern appointment practices in the Judicial Branch, the scholarly consensus holds that the vesting of appointment authority in the Chief does not violate the Constitution. In the leading assessment of the Chief's appointment power, Professor Theodore Ruger concludes that the practice is not "unconstitutional" in the modern sense that a federal court should invalidate legislation conveying such power.8 He bases this conclusion on a variety of considerations, including the gradual growth in the powers of the Chief over time and the plausible textual case for treating the "court of law" as synonymous with the Chief Justice of that court. As Professor Ruger notes, district courts in the nineteenth century often employed a single district judge, making the "court" and the "judge" one and the same. …

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