On Wed, 4 Jun 2003, Levinson wrote:
> An odd (but I'm not sure incorrect) pont just occurred to me. The
> Judicial Watch suit (and constitutional argument) is based on the "duty"
> of the Senate to fill judicial vacancies (or, at the least, to vote on
> presidential nominees). But, of course, there is no duty to have
> federal courts at all, other than the Supreme Court (though the fact
> that the Court has ranged from 5-10 members over its history suggests
> that there's nothing sacrosanct about the number nine). So if Congress
> could simply abolish the federal circuit courts (remember Stuart v.
> Laird?), why can't it adopt procedures that make it marginally harder to
> fill vacancies? Isn't this just another example of having to accept
> "the bitter with the sweet," an argument associated, of course, with
> members of the current majority, especially Rehnquist.
>
> sandy
Ah, but Congress's ability to abolish the federal courts depends on its
passing ordinary legislation, signed by the President or approved by 2/3
of each house, n'est-ce pas? So, if we thought that what Congress is
accused of here should be analyzed in terms of Congress's power to ordain
"such" lower courts as it sees fit, then we'd have to concede that the
balance of decisional power is shifted under this procedure. One could
try to argue that at least for courts or judgeships created after the
development of the modern filibuster we should see the statute creating
the Court as subjecting it to this reserved power, but that would sound a
bit like the argument the majority rejected in striking down the line-item
veto. So, the separation of powers objections don't seem obviated by
Sandy's suggested perspective, even if they are perhaps ameliorated since
the Senate with the filibuster is of course not actually abolishing
judgeships but rather "mak[ing] it marginally harder to fill vacancies."
Does that sound right?
David B. Cruz
Professor of Law, University of Southern California Law School
Visiting Scholar, The Charles R. Williams Project on Sexual Orientation
Law, UCLA School of Law
