If the Senate is constitutionally obliged to vote on a judicial nomination and if any attempt to justify the failure to do so as a "lesser included" element of the greater power to abolish particular inferior courts or judgeships is rejected (because of the bicameralism and presentment requirements involved in exercising the greater power), then does the President have a concomitant constitutional obligation to make nominations to fill all authorized judgeships?
President Bush has done an admirable job this year not only to clear out the backlog of vacancies without nominations, but also to act quickly when new vacancies arise, sometimes making nominations immediately upon (or even before) the effective date of the vacancy. See http://www.uscourts.gov/vacancies/judgevacancy.htm Indeed, the point of his request that judges give advance notice of intent to resign or go senior was to facilitate such rapid nominations. Judges appear to be abiding by his request, see http://www.uscourts.gov/vacancies/futurevacancy.htm (indicating vacancies to occur as late as April 2004). There are, however, still two old vacancies on the DC Circuit without nominations. I understand that some think that the DC Circuit is bigger than it needs to be, and that these two seats should simply not be filled at all. If the President agrees (or doesn't strongly disagree) is it unconstitutional for the President to fail to nominate anyone for these seats? Is the failure to nominate, as an alternative to a statute reducing the size of the DC Circuit, an evasion of bicameralism and presentment? Is there a constitutional difference between the Senate failing to vote on a nominee and the President failing to make a nomination? The two vacancies were created by Judge Williams going senior in September of 2001 and Judge Silberman going senior in November of 2000. (Miguel Estrada has been nominated to fill the seat vacated by Judge Wald's retirement in November of 1999.) Ed Hartnett Seton Hall David Cruz <[EMAIL PROTECTED]> To: [EMAIL PROTECTED] Sent by: Discussion cc: list for con law Subject: Re: Judicial Watch suit against the Senate's professors filibuster <[EMAIL PROTECTED] v.ucla.edu> 06/04/03 02:43 PM Please respond to Discussion list for con law professors 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
