미연방 원로판사제도의 위헌성에 관한 연구

다국어 초록 (Multilingual Abstract)

With many federal courts facing burgeoning caseloads and persistent judicial vacancies, senior judges play a vital role in the continued well-being of the federal Judiciary. Despite the importance of their participation in the judicial process, however, senior judges raise a host of constitutional concerns that have escaped the notice of scholars and courts. Many of the problems originate with recent changes to the statute authorizing federal judges to elect senior status, including a 1989 law that permits senior judges to fulfill their statutory responsibilities by performing entirely nonjudicial work. Others arise from the ambiguity of the statutory scheme itself, which seems to suggest that senior status represents a separate constitutional office requiring reappointment, even though senior judges nominally retain judicial office under federal law.
This study addresses the constitutionality of senior judges, examining two general constitutional questions: first, whether the requirement that senior judges be designated and assigned by another federal judge before performing any judicial work violates the tenure protection of Article Ⅲ; and second, whether allowing judges to elect senior status, without a second, intervening appointment, violates the Appointments Clause.
Consequently, this paper concludes that the current statute authorizing senior judges raises serious constitutional problems that Congress, the Judicial Conference of the United States, or the courts should address. To that end, this article formulates a number of straightforward suggestions to repair senior status without sacrificing any of the considerable benefits that senior judges confer on the federal Judiciary.

참고문헌 (Reference)

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2 Michael J. Gerhardt, "Toward a Comprehensive Understanding of the Federal Appointments Process"

3 Tuan Samahon, "The Judicial Vesting Option: Opting Out of Nomination and Advice and Consent"

4 Michael J. Gerhardt, "The Constitutional Limits to Impeachment and Its Alternatives"

5 Gary Lawson, "Taking Notes: Subpoenas and Just Compensation"

6 RICHARD A. POSNER, "THE FEDERAL COURTS: CHALLENGE AND REFORM"

7 Kelly J. Baker, "Senior Judges: Valuable Resources, Partisan Strategists, or Self-Interest Maximizers?"

8 Wilfred Feinberg, "Senior Judges: A National Resource"

9 David R. Stras, "Retaining Life Tenure: The Case for a “Golden Parachute"

10 David J. Garrow, "Mental Decrepitude on the U.S. Supreme Court: The Historical Case for a 28th Amendment"

11 DAVID N. AFKINSON, "LEAVING THE BENCH"

12 Martin H. Redish, "Judicial Discipline, Judicial Independence, and the Constitution: A Textual and Structural Analysis"

13 Carl Tobias, "Judge William Schwarzer and Automatic Disclosure"

14 Ross E. Wiener, "Inter-branch Appointments After the Independent Counsel: Court Appointment of United States Attorneys"

15 Raoul Berger, "Impeachment of Judges and Good Behaviour Tenure"

16 John C. Yoo, "Globalism and the Constitution: Treaties, Non-self-execution, and the Original Understanding"

17 ERWIN CHEMERINSKY, "FEDERAL JURISDICTION"

18 Michael J. Broyde, "Expediting Impeachment: Removing Article III Federal Judges After Criminal Conviction"

19 Jack B. Weinstein, "Every Day Is a Good Day for a Judge to Lay Down His Professional Life for Justice"

20 ARTEMUS WARD, "DEDIDING TO LEAVE: THE POLITICS OF RETIREMENT FROM THE UNITED STATES SUPREME COURT"

21 J. Clifford Wallace, "Comparative Perspectives on the Office of Chief Justice"

22 Irving R. Kaufman, "Chilling Judicial Independence"

23 Michael W. McConnell, "Book Review, Active Liberty: A Progressive Alternative to Textualism and Originalism"

24 Albert Yoon, "As You Like It: Senior Federal Judges and the Political Economy of Judicial Tenure"

25 David R. Stras, "Are Senior Judges Unconstitutional?"

26 Charles Gardner Geyh, "Adverse Publicity as a Means of Reducing Judicial Decision-Making Delay: Periodic Disclosure of Pending Motions, Bench Trials and Cases Under the Civil Justice Reform Act"