James E. Pfander, Northwestern University School of Law, has posted the paper
The Chief or the Court: Article II and the Appointment of Inferior Judicial Officers, to appear in the
Northwestern University Law Review 107 (2013). Here is the abstract:
Each year, the Chief Justice of the United States makes a number of appointments to offices within the Article III judicial establishment. On its face, such a Chief-based appointment practice seems hard to square with the text of Article II, which provides for the appointment of inferior officers by the "courts of law." Scholars have noted the switch from a court-based to a Chief-based appointment system, but generally regard the Chief's authority as constitutionally benign.
This Essay explores the origins of the Constitution's choice of the "courts" as the repository of appointment power. The decision was made against the backdrop of an eighteenth century English and colonial judicial practice in which the perquisites of office for chief judges included fees collected from litigants and proceeds from the sale of inferior offices. By switching to salary-paid judges and a court-based appointment system, the framers may have intended to end the corrupting influence of fees and office sales and to create a more transparent, meritocratic process. Certainly when Congress established the first federal court system, it was careful to assign the appointment power to the courts themselves. And when Chief Justice John Jay presided over the Court's first session in February 1790, he refused to make any appointments himself, insisting instead that the task was one for the Court to undertake after consultation with all the Justices.
This Essay argues that the Court should reclaim its role as the designated recipient of the power to appoint inferior officers within the Article III bureaucracy. Article III creates a single supreme court, places it atop the federal judicial hierarchy, and requires all other courts and tribunals to remain inferior to that court. Article II underscores the Court's special role by providing for the assignment of appointment power to "courts of law." While the Chief might play a role as the Court's designee, the Court itself has a constitutional duty to oversee the appointment of inferior officers.
