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


Tuan Samahon


Villanova University - School of Law

February 11, 2008

Ohio State Law Journal, Vol. 67, p. 783, 2006
UNLV William S. Boyd School of Law Legal Studies Research Paper No. 08-23

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

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Date posted: December 22, 2006 ; Last revised: July 18, 2008

Suggested Citation

Samahon, Tuan, The Judicial Vesting Option: Opting Out of Nomination and Advice and Consent (February 11, 2008). Ohio State Law Journal, Vol. 67, p. 783, 2006; UNLV William S. Boyd School of Law Legal Studies Research Paper No. 08-23. Available at SSRN: http://ssrn.com/abstract=953114

Contact Information

Tuan Samahon (Contact Author)
Villanova University - School of Law ( email )
299 N. Spring Mill Road
Villanova, PA 19085
United States
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