67 research outputs found
Professionals, Politicos, and Crony Attorneys General: A Historical Sketch of the U.S. Attorney General as a Case for Structural Independence
Historically, the office of the U.S. Attorney General has been identified as “quasi-judicial” or having “quasi-judicial” aspects. Other parts of the Department of Justice (DOJ) have also been described as quasi-judicial, such as the Office of Legal Counsel and the Solicitor General. A glance at a list of past attorneys general seems to confirm this judicial aspiration in practice. Nine attorneys general became U.S. Supreme Court justices, and others were notably judicious and professional in their tenure in the office. Of course, there are some infamous examples of unprofessional cronyism—the appointment of friends or associates to positions of authority, without properly considering their qualifications—but there are famous counterexamples of those who stood up to the presidents they served in defense of legal principles. The “insider” friend, fixer, or brother of the president was presumably the exception. But a closer examination of the history of the Office of the Attorney General reveals a surprising pattern: the nineteenth century had relatively few crony-ist appointments in an era known for patronage, but the twentieth century ushered in more partisan insiders, hacks, and fixers, just as the DOJ’s power grew enormously. This shift was remarkably bipartisan, starting under President Woodrow Wilson, a Democrat, and then continuing immediately after under President Warren G. Harding, a Republican. Perhaps this turn in the late 1910s started an era of partisan escalation as each political party pushed the norms as they rotated into power. This Article suggests that these trends have contributed to making the DOJ partisan and allowing some presidents to imagine the Attorney General as the president’s personal lawyer and fixer. In just over half of the past century, the Office of the Attorney General has been filled by a partisan insider
In Defense of Appearances: What Caperton v. Massey Should Have Said
In June of 2009, the U.S. Supreme Court ruled for the first time that an elected judge must recuse himself from a case that involves a major campaign contributor. In Caperton v. A. T. Massey Coal Co., a coal company had been hit with a 3 million to help a challenger, Brent Benjamin, who had no judicial experience, defeat the incumbent, West Virginia Supreme Court Justice Warren McGraw. Blankenship funded political attack ads by a political organization (And for the Sake of the Kids) that was created to defeat McGraw, alleging that he was soft on child molesters.1 The well-financed Benjamin won, 53% to 47%, and was the deciding vote to overturn the jury verdict. In a 5-4 ruling, Justice Anthony M. Kennedy concluded, There is a serious risk of actual bias when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds ... when the case was pending or imminent. \u272 Such political and financial influences on the court violate due process and threaten to imperil \u27public confidence in the fairness and integrity of the nation\u27s elected judges.\u27
In dissent, Chief Justice John G. Roberts, Jr. expressed concern for public confidence too, but with a very different result. The majority\u27s decision, Roberts feared, will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be. The end result will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case. \u27 4 Roberts concluded that future Caperton motions will bring our judicial system into undeserved disrepute, and diminish the confidence of the American people in the fairness and integrity of their courts. \u27 5 In Caperton, Justice Kennedy and Chief Justice Roberts engaged in a battle of appearances. For Kennedy, litigants who buy seats on courts create an appearance of bias that is severe enough to implicate the right to due process. For Roberts, simply the claims of bias create an appearance of bias, which he believes is undeserved. Roberts then goes on to raise forty questions about the future applications of Caperton and its ambiguities, concluding that it creates more problems than it resolves.
I suggest that in explaining the new recusal rule, the Supreme Court should have been even more clear that appearances matter. Caperton requires recusal when a party\u27s campaign support for a judicial candidate creates a risk of actual bias or a probability of bias, rather than an appearance of bias. However, the appearance of bias standard is more rooted in precedent, and in response to Chief Justice Roberts\u27s practical concerns in dissent, the appearance of bias standard is actually more practical. I also address Chief Justice Roberts\u27s pragmatic concerns about the manageability of Caperton motions with some observations about civil procedure and the actual practice of judicial elections. Part II argues that the problem of money in judicial elections is real, and not just an isolated case, as Chief Justice Roberts suggested.6 Part III then argues that Caperton motions will be relatively manageable. 7 Part IV focuses in particular on the appearance of bias standard as a more established, more practical, and more manageable standard than the probability of bias standard.8 Justice Kennedy\u27s switch from appearance of bias language to the actual bias and probable bias language is not an accident. Perhaps mere appearances seem superficial, but the dismissal of appearances because of its mere appearance, if you will, is itself superficial. The appearance of bias standard is arguably more rooted in Anglo-American precedents, and appearances of bias are real harms in themselves. This Article also suggests that the Court should add an appearance of justice standard to capture what may have really been going on in West Virginia: the purchasing of a seat for a true believer who needed no political pressure to bias him in favor of Blankenship and Massey. Part V suggests that the Court does not need to seek perfect clarity in these rulings. In fact, ambiguity and uncertainty have their distinct advantages among reputation-protecting judges and risk-averse parties and lawyers, as long as the Supreme Court does not ignore these issues now that it already has entered the fray. The most important decisions in the future are the decisions to grant certiorari every so often, rather than the exact wording of its decisions
Presidential Removal: The Marbury Problem and the Madison Solutions
Marbury v. Madison is not just a puzzling judicial review precedent. It is also a puzzle about presidential removal. Why was it not taken for granted that Jefferson, Secretary of State Madison, or another executive official could simply fire Marbury? Why did Chief Justice Marshall also conclude in the unanimous decision that Marbury could not be removed?
This symposium essay summarizes recent research (especially by Jane Manners and Lev Menand) to solve this problem: an office appointed to a term of years restricted removal in the Anglo-American tradition, demonstrating that presidential removal was not a default rule. This essay also summarizes my research on the first Congress, showing that this rule was not limited to arguably judicial or quasi-judicial offices like Marbury\u27s office of justice of the peace. The Madison solution here is that then-Rep. Madison in 1789, in the debates creating the new Treasury Department, proposed an office of Comptroller with a limited term of office -- and he and his colleagues understood that such terms would protect the Comptroller from presidential removal.
But Chief Justice Marshall\u27s Marbury decision suggests another problem: He used the word vest to connote special legal protection for an office-holder. Does this mean that the word vest in the Constitution also had an original public meaning of exclusive and infeasible powers, so that Article II vested complete and exclusive executive power in the president, as the unitary theorists posit? This essay briefly previews new research suggesting that vest did not have such an original public meaning with respect to powers
Amicus Brief in Collins v. Mnuchin on Original Public Meaning of Presidential Removal and the \u27Decision of 1789\u27
Petitioners and the en banc Court of Appeals below have rested their contention that the Constitution grants the President at-will removal authority over the head of the Federal Housing Finance Agency (FHFA) on historical claims about the first Congress’s ostensible “Decision of 1789.” In so doing, Petitioners are following Chief Justice Taft’s account in Myers v. United States, upon which this Court relied on in 2010 and again last term for an originalist interpretation of Article II. New historical research shows that Myers was incorrect. The “Decision of 1789” actually supports, rather than undermines, Congress’s power to limit presidential removal.
Myers asserted that the first Congress’s “Decision of 1789” declared that the Constitution assigned removal power to the President alone: “[T]here is not the slightest doubt, after an examination of the record, that the [Foreign Affairs] vote was, and was intended to be, a legislative declaration that the power to remove officers appointed by the President and the Senate vested in the President alone.” 272 U.S. 52, 117 (1926). New evidence calls for a re-examination of this record, raising more than just a doubt.
Originalism depends upon clear historical evidence of public meaning. Seila Law LLC v. Consumer Financial Protection Bureau noted that the first Congress’s view “provides contemporaneous and weighty evidence of the Constitution’s meaning.’” 140 S. Ct. 2183, 2197 (2020) (internal quotation omitted). Overlooked Senate records show no consensus in the first Congress to support Myers’s interpretation. To the contrary, this new evidence suggests a very different decision in 1789. The first Congress rejected “presidentialism,” the more general constitutional claim that the President alone can remove principal officers confirmed by the Senate, even the heads of the Departments of Foreign Affairs, War, and especially Treasury; and it rejected the more specific claim of exclusive or “indefeasible” presidential removal under Article II (a claim by the Petitioners here), that presidential removal is “at pleasure” or “at will.” Both positions rely on a claim that Article II establishes “unitary” or exclusive presidential removal, unchecked by other branches.
The most significant new evidence:1) Senator William Maclay’s diary reveals initial opposition to presidential removal (of any source) in the Senate, which is the most plausible explanation for Madison’s sudden retreat from a clear removal clause to an ambiguous one. Madison’s opponents and allies identified this shift as evasion or reconciliation with the Senate.
2) The first head-count of the House by constitutional categorization demonstrates that only about one third of the House supported the “presidential” interpretation, and a wide majority rejected it.3) New evidence from the Treasury debate and from a series of statutes reveal further rejection of exclusive presidential removal, especially in the domain of finance. Congress delegated removal power, even of the Secretary of Treasury, to the judiciary.4) This widespread opposition to presidentialism in 1789 prompts a re-reading of the Constitution’s text, the Convention, and the Ratification debates. New research on “vesting” shows that this text likely did not have a public meaning of “exclusive” or “indefeasible.”Myers was mistaken. The first Congress opposed this interpretation of Article II, forced the deletion of the clear removal language in the Foreign Affairs bill, and then enacted six anti-presidentialist removal clauses. It would be an error in terms of originalism to rely on the first Congress or the Executive Vesting Clause to invalidate the FHFA structure
The Golden or Bronze Age of Judicial Selection?
In The Politics of Early Justice, Michael Gerhardt and Michael Stein convincingly undercut the conventional wisdom that there was a golden age of federal judicial selection in the early 1gth century: an era of merit-based, non-partisan nominations and deferential confirmations by the Senate., Their research is laudably thorough and groundbreaking, and it will serve as an important starting point for scholars and policymakers studying the history of federal judicial selection. Now that Gerhardt and Stein have uncovered and organized the comprehensive record of early federal judicial appointments, the question is how to interpret this wealth of new information.
This Essay questions Gerhardt and Stein\u27s interpretation of the golden age and whether there were meaningful differences in the politics of the nomination and confirmation processes of the antebellum era as compared with the contemporary era. In Part II, I suggest that one hallmark of the contemporary judicial selection process is the intense inquiry into the nominees\u27 personal lives and ethics (whether through confirmation hearings or the media). Gerhardt and Stein do not find much evidence of these practices in the antebellum era, even though historians have noted the nastiness of that era\u27s presidential election campaigns. Thus, some aspects of the imagined golden era may be true, while others may not.
Then, the Essay highlights a few of Gerhardt and Stein\u27s most interesting findings of discontinuity between the antebellum and contemporary eras. While acknowledging the obvious discontinuities, Gerhardt and Stein emphasize the patterns of practice that are similar to contemporary developments 2 and argue that their research shows surprisingly relative equivalence between the antebellum and contemporary periods. 3Part III discusses how these findings further undercut the notion that a true golden age existed in judicial selection. This Essay draws from that aspect of their research, concluding that the golden age of modern political commentators\u27 imagination was more a judicial bronze age before the transportation and communication revolutions
Movement on Removal: An Emerging Consensus on the First Congress
What did the “Decision of 1789” decide about presidential removal power, if anything? It turns out that an emerging consensus of scholars agrees that there was not much consensus in the First Congress.
Two more questions follow: Is the “unitary executive theory” based on originalism, and if so, is originalism a reliable method of interpretation based on historical evidence?
The unitary executive theory posits that a president has exclusive and “indefeasible” executive powers (i.e., powers beyond congressional and judicial checks and balances). This panel was an opportunity for unitary executive theorists and their critics to debate recent historical research questioning the unitary theory’s claims (e.g., Jonathan Gienapp’s The Second Creation and my article “The Indecisions of 1789: Inconstant Originalism and Strategic Ambiguity,” since published in the University of Pennsylvania Law Review).
Unitary theorists on the panel conceded some errors and problems with the claims of a “decision.” Most pivoted away from the traditional account that, based on the legislative debates, a majority of the First Congress endorsed an interpretation that Article II established a presidential removal power. Instead, they shifted to emphasize statutory texts rather than legislative history (though the texts do not indicate an Article II removal power); that the endorsement of even a minority faction of roughly 30% of the House was still substantial; that it was the quality of the argument, not the quantity of supporters (though the “quality” is in the eye and the ideological priors of the beholder, and though it is unclear how original public meaning could be established by a defeated minority position); or perhaps it is the quality or historical importance of the speakers, like Washington, Hamilton, Madison, and Marshall, that counts (nevermind that Madison, Hamilton, and Marshall also contradicted the unitary theory). None of these pivots rescues the “Decision” myth.
Perhaps most interesting was the unitary theorists\u27 openness to turning to later evidence, of practices and debates further and further away from the Founding and Ratification. To their credit, they demonstrated a willingness to leave behind standard originalist methods of “original public meaning” during Ratification, and to engage in methods more consistent with common law constitutionalism and living constitutionalism. The challenge is whether they will acknowledge that they have to choose between originalism and the unitary theory
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