By statute, the Chief Justice of the United States has the power to fill positions in the judicial bureaucracy, as well as to appoint judges to specialized courts such as those created by the Foreign Intelligence Surveillance Act (FISA). Many commentators have questioned this broad appointment power on policy grounds, and a recent front-page article in The New York Times scrutinized Chief Justice John Roberts’ appointments to the FISA courts. Now, Professor Jim Pfander enters the debate with a more immediate question: Does the Chief Justice have the constitutional authority to make such appointments?
Pfander starts with the text. Article II allows Congress to assign the power to appoint “inferior Officers” in the President, the heads of departments, and the “Courts of Law”; nowhere does it allow Congress to vest this power in the Chief Justice of the United States. Pfander bolsters his textual argument with evidence that the Framers gave the appointed power to an entire court, rather than an individual judge, to put a stop to the corrupt eighteenth-century judicial practice of selling such offices to the highest bidder. And Pfander notes that the nation’s first Chief Justice, John Jay, did not assume for himself the power to make appointments, but rather was careful to let the Court as a whole make these decisions.
As Pfander acknowledges, however, scholars such as Judith Resnik, Lane Dilg, and Theodore Ruger have concluded that a “court of law” can reasonably be read as synonymous with the Chief Justice of that court. Moreover, in Freytag v. Commissioner of Internal Revenue, the Supreme Court upheld a statute granting the chief judge of the Tax Court the power to appoint inferior judges on that court, which suggests the Supreme Court itself had no problem stretching the meaning of “court of law” to cover the judge heading that court. In light of that scholarly consensus and Supreme Court precedent, Pfander’s revisionist view might not prevail, but he has certainly made us think hard about a practice that has been long assumed to be constitutionally sound.
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