Professor Balkin has responded to Lily's answer as to why judicial nominations are different from university admissions. In an extended post, he made a point that caught my eye because I had asked Lily the same thing after she posted. In Professor Balkin's words:

Is the difference between the President and the University of Michigan admissions committee that the members of the admissions committee are acting as agents of the state while the President of the United States is not? That is, is the problem a failure of state action?

Is it?



Is the nomination of a judge or justice by the President state action? The first question is whether any action by the President can be considered action not by the state. If not, then the discussion is over. It does seem, though, that there must be some Presidential action that is not state action. There must be some Presidential action that can be separated out--that is, action taken by the President, but not action taken, in turn, by the United States. Let's say there is. Even so, can a judicial nomination fit into that category of action? Perhaps. There does seem to be something personal about a nomination. After all, it isn't an appointment, right? A judicial nomination is not the actual selection a judge--the action of selecting a judge is not complete, so to speak, until the Senate has confirmed the President's nomination. On the other hand, just because a nomination is only part of the action does not necessarily excuse it from being state action does it? In fact, while the Presidential action is only part of the selection of a judge, it is a necessary part. It is, in fact, a part of the judicial selection process by which access to the Senate confirmation process is limited. Isn't that, then, an affirmative act by the state? The President has affirmatively narrowed the pool of possible judges upon which the Senate can complete the process of selection.



Add to this the fact that the Constitution makes judicial "appointment" an enumerated power of the President. Yet, is this an enumerated power of the President, to be performed on behalf of the United States? That is not a necessary conclusion.



Where does that leave us? I'm not sure...

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