The Judicial Vesting Option: Opting Out of Nomination and Advice and Consent

Abstract:     
It is a well-worn mantra that our judicial selection process is broken, not only because senators may exercise their advice and consent power in ways that seek to direct the outcomes of Article III adjudication, but also because presidents nominate judges with a view to bending adjudication toward their preferred policy outcomes. This Article argues that the U.S. Constitution authorizes a partial solution for those disenchanted with the appointments status quo: opt out of presidential nomination and senatorial advice and consent, and vest the appointments power in the Courts of Law. This arrangement, which this Article terms the Judicial Vesting Option, is permissible because the judges of the inferior courts constitute "inferior officers" within the meaning of the Appointments and Excepting Clauses. This solution might be desirable because it would place the appointments process beyond the reach of the President, Senate, or interest groups to influence; and would realistically provide an opportunity for judges to emphasize merit as the principal consideration in appointment. Such an approach to inferior court appointments may be desirable because, as reaffirmed by the successful Roberts and Alito confirmations and the failed Miers nomination, service on the inferior courts has become a political sine qua non for appointment to the Court.

Number of Pages in PDF File: 66

Keywords: appointments, excepting, nomination, judge, vest, inferior officer, separation of powers

Accepted Paper Series