Judges & Judicial Process – Page 15 – Marquette University Law School Faculty Blog

Insights Offered on Working in the White House and Judicial Nomination Gridlock

Post author:Alan J. Borsuk
Post published:April 14, 2016
Post category:Judges & Judicial Process President & Executive Branch Public Sports & Law

It was three years from the time Brett Kavanaugh was nominated by President George W. Bush to be a federal appeals court judge to the time when his nomination was approved in 2006. That certainly gave him a first-hand look at the difficulties of getting a federal judicial nominee approved by the U.S. Senate.

“It’s been a mess for decades,” Kavanaugh, who serves on the U.S. Court of Appeals for the District of Columbia Circuit, said Wednesday during an “On the Issues with Mike Gousha” program at Marquette Law School. Republicans have held up appointments by Democratic presidents. Democrats have help up appointments by Republican presidents.

Kavanaugh would not comment specifically on the current high-profile part of this recurring “mess,” in which President Barrack Obama’s nomination of Judge Merrick Garland to the Supreme Court has met a wall of Republican opposition in the Senate.

But Kavanaugh repeated a position he has held for years, one that was in line with the policy Bush advocated when he was president: “There really should be rules of the road agreed on by both parties ahead of time to fix the process. “ Kavanaugh said Bush, during his presidency, had suggested a policy in which nominations would get a vote in the Senate within 180 days. Kavanaugh supported that idea.

Limited Terms for Justices Worth Considering, Appeals Judge Says in Hallows Lecture

Post author:Alan J. Borsuk
Post published:March 8, 2016
Post category:Federal Law & Legal System Judges & Judicial Process Public Speakers at Marquette U.S. Supreme Court

Judge Albert Diaz began his E. Harold Hallows Lecture at Marquette Law School last week by saying that he was going to offer thoughts on life tenure for federal judges ”which I’m pretty confident do not reflect the views of many, if not all, of my judicial colleagues.”

But Diaz, a judge since 2010 on the U.S. Court of Appeals for the Fourth Circuit, thought the ideas he presented to be worth considering, especially at a time when concerns about the U.S. Supreme Court, including how justices are appointed, are getting so much attention.

In his Eckstein Hall lecture, Diaz outlined arguments for and against both life tenure for federal judges and election of judges. He traced the debate back to the U.S. constitutional convention in 1787 and the opposing views for and against life tenure. The former prevailed, of course.

“The act of judging is not for the faint of heart,” Diaz said. “Judging is a human endeavor” and decisions are “not always free from taint.” But it is difficult to decide what “on the front end,” i.e., in determining who will be a judge, would best minimize the chances of tainted judicial work.

The Senate Must Consider Supreme Court Nominations in Due Course

Post author:Edward A. Fallone
Post published:February 23, 2016
Post category:Congress & Congressional Power Constitutional Interpretation Constitutional Law Judges & Judicial Process Political Processes & Rhetoric Public U.S. Supreme Court

Today, the Senate Majority Leader, Mitch McConnell, announced the unprecedented decision that the United States Senate will refuse to consider any nominee put forward by President Obama during the remainder of his term in office to fill the current vacancy on the United States Supreme Court. Senator McConnell said, “My decision is that I don’t think that we should have a hearing. We should let the next president pick the Supreme Court justice.”

The refusal of the United States Senate to consider any nominee put forth by President Obama is a clear violation of the Appointments Clause of the United States Constitution. Under the Appointments Clause (Article II, Section 2, Clause 2):

The President . . . shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law. . .

The role of the President is to appoint nominees to the United States Supreme Court. The role of the Senate is to provide their “advice and consent” to the President on the specific nominee.

The meaning is “advice and consent” is clear and uncontroversial. The Framers of the Constitution recognized that absolute monarchs such as the King of England had abused the power to appoint public officials. This abuse was due to the monarch’s absolute power to appoint anyone they chose. In response, the Constitution divided the power to appoint superior public officials and Supreme Court Justices between the Executive (the President) and the Senate. The Framers of the Constitution diffused the appointment power, just as they diffused several other powers among separate branches of the federal government in order to guard against abuse.

However, the separation of the power to appoint into two pieces is not split 50-50 between the President and the Senate. Rather, the split is made between the President’s absolute power to select any nominee he or she chooses, and the Senate’s power to accept or reject the nominee. The intent of the Appointments Clause is to give the Senate a check on the President’s choice, in order to prevent nominations that result from corruption, cronyism, or the advancement of unqualified nominees (i.e., family members). The Appointments Clause does not give the Senate any role in deciding who or when the President will nominate.

In fact, the Senate has no pre-nomination role at all in the appointment process. The Senate’s only role under the Constitution arises after the President makes a nomination. In this regard, it has often been remarked that the power of initiative lies with the President under the Appointments Clause.

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