Tax Court Appointments and Reappointments: Improving the Process
41 Pages Posted: 28 Mar 2011 Last revised: 2 Feb 2012
Date Written: 2011
During the Presidential administrations of William J. Clinton and George W. Bush changes in the political climate made politics increasingly visible in judicial appointments. This trend has continued into the first two years of President Barack Obama’s administration and his judicial appointments. Most of the public attention with regard to judicial appointments is focused on nominees to serve as judges on the Article III courts: the United States District Courts, United States Courts of Appeals, and the United States Supreme Court. However, other courts are affected by this trend, specifically, the courts created by legislative enactment pursuant to Article I of the Constitution, including the United States Tax Court.
As an Article I court, the Tax Court has a number of differences from Article III courts. The most important of which is likely the lack of life tenure afforded to the judges appointed to the Tax Court bench, Tax Court judges are appointed by the President, with the advice and consent of the Senate to serve 15 year terms, and judges may be reappointed.
As the only prepayment forum for tax controversies, the majority of all civil tax litigation goes through the Tax Court. As a result, the Tax Court’s decisions play an important role in the economic life and health of all taxpayers. As a consequence, the effectiveness of the mechanism by which quality appointments and reappointments to the Tax Court are made should be of great concern to all.
This Article explores the appointment of Tax Court judges and the reappointment of Tax Court judges. In exploring these issues, this Article focuses on the processes historically used to appoint and reappoint Tax Court judges. This Article also considers the impact that recent changes in the appointment and reappointment process have had on both the quality of judges and the court itself.
As this Article demonstrates, delays in the reappointment process have had a significant effect on the efficient and effective disposition of justice to taxpayers. This negative effect has been noted by many who are close the tax administration system, including the chairmen of the House Ways and Means Committee and the Senate Finance Committee, and the American Bar Association Committee, Taxation Section.
This Article concludes that politicizing the selection of Tax Court judges, or the conditions under which a Tax Court judge is reappointed, would weaken the legitimacy of the Tax Court. However, under recent circumstances, such politics have been only a symptom of underlying problems. In practice, appointments have worked well, but reappointments have proven problematic. Recent experiences demonstrate that the appointment process works well to ensure that Tax Court judges are well qualified, as demonstrated by the withdrawal of unqualified candidates during the Bush Administration. However, changes are needed to the reappointment process, as the political use of that process has weakened the Tax Court by reducing the availability of experienced, established, well qualified presidentially appointed Tax Court judges.
This Article explores options to prevent this weakening of the Tax Court. Short of permitting life tenure, which seems unlikely given the historic resistance to turning the Tax Court into an Article III court, the Tax Court’s statutes should be amended to allow judge’s who are serving as senior judges on recall because of the expiration of their first term to continue to exercise the power’s of a judge, including participation in court review of a case. This power should continue when a judge is qualified for and interested in reappointment. The power to act in this manner would be withdrawn in the event that the president indicated that he or she did not intend to fill the vacancy or intended to nominate another person to the position.
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