The Chief Justice, the Appointment of Inferior Officers, and the “Court of Law” Requirement

Pfander, James E. | March 1, 2013

In addition to his judicial duties, the Chief Justice presides over a sprawling judicial bureaucracy. Each year, the Chief fills positions within that bureaucracy, designating Article III judges to various specialty courts and appointing such officers as the director of the Administrative Office of the U.S. Courts. Although critics worry that the Chief may use his appointment role to shape Third Branch policy unduly, scholars view the role as constitutionally benign. This Article questions the Chief’s role. The Constitution authorizes Congress to vest the appointment of inferior officers in the “courts of law” but not the Chief Justice. History teaches that this was a deliberate choice (to curtail the corrupting influence of patronage powers) and one to which the nation’s first Chief, John Jay, scrupulously adhered. After tracing the decline of the early practice, the Article proposes the return to a courtbased appointment model.