Posted on 02/04/2002 11:41:47 AM PST by kattracks
The reasoning error you are making is that the president can change the law by appointing someone for a lesser or greater term when the statute doesn't give him that authority. For your interpretation to work the statute would have to give the president discretion over the period of time for the appointment which the instant case does not.
Face it. Congress screwed up. Either we remedy screw ups legislatively or we let activist judges decide what was meant. I happen to be in the camp that says we must go with the law as written.
Oooh, that's easy! Dimocrat presidents appoint them!
He can ask, but he can't do anything to a judge that says no. Under the Constitution, once judges are appointed, their pay cannot be cut. The idea to to separate judges from influence by the Executive branch. Indeed, the idea is so strong that it is highly unlikely that the Executive ever would ask for a judge to resign. This is a good thing--if you were a criminal defendant, would you want the Justice Department, which is prosecuting you, to be able to fire your judge?
Federal judgeships are created by law, so Congeress would have to agree to create more slots. Then, Bush's nominations would have to be confirmed by the Senate.
This is from the statute itself. It appears to grandfather in the procedures from the original act.
I don't, however, agree with BillyBob that the agent/principal relationship matters here. Though I'm no expert, I can't see how an appointee to a panel could be anybody's agent.
If Clinton had no power to make an appointment to fill the remainder of a term (a power that is routinely used for hundreds of federal boards and commissions when people resign, die, or go to jail), then the appointment was invalid and Wilson should be kicked off the Commission immediately and ordered to refund all salary she received.
Your objection proves too much, as they say.
Just as I say, this decision by Judge Kessler WILL be reversed. You might find it instructive to compare the final decision with the three clear reasons I wrote for the reversal, in my article.
Congressman Billybob
This will be decided by a judge either using legislative intent as his yardstick or strict construction. If legislative intent is looked at it gets real murky in this case because it can set bad precedent for other cases.
Because this will ultimately hinge on the types of judicial styles for applying law in this case and will be to a large degree a judgement call I believe that the odd's are against Bush prevailing. We know what the liberal judge will do, but the conservative judge is going to have a real problem ruling for Bush because he needs to write law where there is none.
As for using Clinton's letter to appoint, I just dont' see what legal basis the courts have to rely on his interpretation of the law. Its not a presidents call to make.
term (a power that is routinely used for hundreds of federal boards and commissions when people resign, die, or go to jail),
Everyone of those apppointments your mention have explicit language regarding vacancy appointments, this one does not.
If its so important for both public and private agencies to have the wording that limits a vacancy appointment then its obvious that absent such limitation the only appointment that can be made is for a full term.
QED: Bush prevails. You're wrong.
There are other reasons as well. Read my article. Observe and learn.
Billybob
Oh, I forgot to mention the general counsel just happened to be reviewing his own decision, because it just so happens that Bill appointed to the GC the same individual who had made the decision at the regional level two years earlier. It took Clinton nearly two years to fill the post starting in 1993 and my case sat around until the post was filled. Yes a judge can review his own decision if he gets bumped up the ladder. BTW that is how the govt works. It don't.
I think it's pretty much referring to administrative functions, but it does appear to grandfather in the provisions of the previous statute, indicating intent.
This is my first attempt to make a link. Be gentle.
Sec. 1975. - Establishment of Commission
(a) Generally
There is established the United States Commission on Civil Rights (hereinafter in this chapter referred to as the ''Commission'').
(b) Membership
The Commission shall be composed of 8 members. Not more than 4 of the members shall at any one time be of the same political party. The initial membership of the Commission shall be the members of the United States Commission on Civil Rights on September 30, 1994. Thereafter vacancies in the membership of the Commission shall continue to be appointed as follows:
4 members of the Commission shall be appointed by the President.
2 members of the Commission shall be appointed by the President pro tempore of the Senate, upon the recommendations of the majority leader and the minority leader, and of the members appointed not more than one shall be appointed from the same political party.
2 members of the Commission shall be appointed by the Speaker of the House of Representatives upon the recommendations of the majority leader and the minority leader, and of the members appointed not more than one shall be appointed from the same political party.
(c) Terms
The term of office of each member of the Commission shall be 6 years. The term of each member of the Commission in the initial membership of the Commission shall expire on the date such term would have expired as of September 30, 1994.
(d) Chairperson
Except as provided in paragraphs (2) and (3), the individuals serving as Chairperson and Vice Chairperson of the United States Commission on Civil Rights on September 30, 1994 shall initially fill those roles on the Commission.
Thereafter the President may, with the concurrence of a majority of the Commission's members, designate a Chairperson or Vice Chairperson, as the case may be, from among the Commission's members.
The President shall, with the concurrence of a majority of the Commission's members, fill a vacancy by designating a Chairperson or Vice Chairperson, as the case may be, from among the Commission's members.
The Vice Chairperson shall act in place of the Chairperson in the absence of the Chairperson.
(e) Removal of members
The President may remove a member of the Commission only for neglect of duty or malfeasance in office.
Quorum 5 members of the Commission constitute a quorum of the Commission
What part of SHALL BE isn't understood ?
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