A Plan to Put Us Out of Business
Angus Dwyer and Will Baude, two Yale Law students, debate the merits of an unusual proposal put forth by Professor Mashaw: What if the Supreme Court appointed the lower federal judges rather than the President nominating judges with the advice and consent of the Senate? I'll tell you what would happen -- this blog would have a lot less to talk about. But that's a different story.
Dwyer does a decent job of explaining why, at least if district and circuit judges are considered "inferior officers," this plan wouldn't present any constitutional problems. He also makes a sensible argument that it might ease some of the gridlock of the current judicial nomination process and (perhaps) result in less political appointees. Will contends that there is a danger that allowing the Supreme Court to appoint its own inferior courts would only entrench the high court's own ideology and bias.
I think Will is pretty close to getting it. The problem here is one of separation of powers. The framers very carefully chose to have the judiciary appointed through the advice and consent model so as to have an independent third branch in which each of the other two had a say regarding its composition. Taken a step further, the Judiciary -- the final arbiter of "what the law is" -- was to be picked by a system resulting from a compromise between national interests (represented by the President) and the states' interests (represented by the Senate). Allowing the Supreme Court to control the process, then, would disrupt these checks and balances. Granted, the nine members of the Supreme Court would still be appointed in the same manner, but that doesn't satisfy the intent of the original system when you consider that the vast bulk of the federal judiciary -- over 850 active judges -- would be picked independent of the advice and consent system.
In short, the idea, while intriguing, wouldn't work. The framers were concerned about improper influence in the appointments process, which is why one faction resisted giving the power solely to the President, and another resisted giving the same to the Senate. To contravene both and give it to 9 (or, I suppose, 5) Supreme Court justices, I believe, would please none of the Framers.
Update: More thoughts from "The Fox."