Bankruptcy

Does President Obama need to nominate 339 (or so) bankruptcy judges?

By Katie Porter

Tuan Samahon's new article, Are Bankruptcy Judges Unconstitutional?, 60 Hastings L. Journal 233 (2008), offers a fresh twist on the constitutionality of the bankruptcy judiciary. He sidesteps the Northern Pipeline v. Marathon debate about whether bankruptcy judges can or should be shielded by Article III tenure. Instead, he maps out an Article II challenge to the current appointment process for bankruptcy judges. Today, candidates apply for vacant bankruptcy judges positions, are reviewed by a merit selection panel and then are chosen by the U.S. Courts of Appeals. Prof. Samahon argues that modern bankruptcy judgeships have qualities such as safeguards against removal, expansive jurisdiction, and hefty duties that are incompatible, or at least colorably incompatible, with inferior officer status. While the "Excepting Clause" of the Appointments Clause in Article II permits "inferior officers" to be appointed by the courts, if bankruptcy judges are in fact "principal officers" of the United States, the Constitution would require the President to nominate and the Senate to confirm bankruptcy judges.

Prof. Samahon analyzes the tension between Morrison v. Olson and Edmond v. United States, suggesting that an appointments clause challenge to bankruptcy courts could come out either way. If Morrison is overruled, then existing bankruptcy judgs should be safe. However, if Morrison is good law and an appointment challenge succeeds, we would have 339 new positions to fill. And the fix used post-Marathon, vesting appointment in circuits courts won't work, leaving the Senate and its staffers with a big task and lots of bankruptcy professionals with new opportunities.

The article has an interesting twist for judicial egos. Surely most judges would like to retain their positions and not have to endure a Presidential appointment and Senate confirmation process. Yet, it's an odd world where judges clamor to establish their "inferiority," especially after years of the bankruptcy judiciary working to establish its reputation as a highly-qualified and effective judiciary.

Full post as published by Credit Slips on April 06, 2009 (boomark / email).