Dr. John Eastman, director of the Claremont Institute's Center for Constitutional Jurisprudence, offers a novel suggestion to end the Senate's obstruction of President Bush's judicial nominees, a practice that violates the Senate's constitutional "advice and consent" role. In an article first published in the Wall Street Journal, Dr. Eastman argues that the House of Representatives could call upon its own constitutional authority to break the gridlock:
Article II, Section 2 of the Constitution requires Senate confirmation for appointment of all principal officers, but "Congress may by Law vest the appointment of … inferior officers"including, as a matter of the Constitution's text, all lower court judges"in the President alone, in the Courts of Law, or in the Heads of Departments." As the text specifies, this can be done 'by law,' which means the House of Representatives can initiate legislation that would vest in the President alone the sole power to appoint lower court judges whenever the Senate has failed either to confirm or reject the President's nominees in a reasonable period of time, say, six months.
Such an action "would force a return of the advice and consent role to the place where the Constitution assigns into the Senate as a body rather than to an individual Senator or committee." Moreover, Eastman explains, "[a]ssigning the appointment power to the President alone after six months of inaction by the Senate would not unduly interfere with internal procedures of the Senate. The committee system would still have its role to play, but that role could not be abused by abject refusals to even hold hearings or votes on nominees who enjoy majority support."
Dr. Eastman's Wall Street Journal article, "'In the President Alone' A Legislative Proposal to End the Confirmation Stalemate," can be read on the Claremont Institute's website, here.
(See also, "The Senate Is Supposed to Advise And Consent, Not Obstruct and Delay," by John Eastman and Timothy Sandefur.)
In addition to his work at the Claremont Institute, Eastman is a professor at Chapman University Law School, and former Supreme Court clerk for Justice Clarence Thomas. He frequently comments on politics and the law in such venues as "The O'Reilly Factor" and his regular Wednesday appearances on the "Hugh Hewitt Show." He was called upon to testify before the Florida Legislature's Select Committee on the 2000 Election. Dr. Eastman filed briefs on behalf of the Claremont Institute in several cases of constitutional importance, including Boy Scouts of America v. Dale, Zelman v. Simmons-Harris (the Ohio School voucher case), and Grutter v. Bollinger (the Michigan affirmative action case).
For more on the Center for Constitutional Jurisprudence, click here.