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Appointment of Special Judges
"The suffering people are thus wounded and buffeted, like Homer's Ajax, in the dark; and have not even the melancholy satisfaction of knowing by whom the blows are given."
James Wilson

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Freytag

v.

Commissioner
Appointment of Special Judges

Justice Scalia Concurrence
June 27, 1991
Seal Of The Supreme Court
Excerpt:

I agree with the Court that 26 U.S.C. 7443A allows the chief judge of the Tax Court to assign special trial judges to preside over proceedings like those involved here, and join Parts I, II, and III of its opinion. I disagree, however, with the Court's decision to reach, as well as its resolution of, the Appointments Clause issue.

As an initial matter, I think the Court errs by entertaining petitioners' constitutional challenge on the merits. Petitioners not only failed to object at trial to the assignment of their case to a special trial judge, but expressly consented to that assignment. It was only after the judge ruled against them that petitioners developed their current concern over whether his appointment violated Art. II, 2, cl. 2, of the Constitution.

...The Framers' experience with post-revolutionary self-government had taught them that combining the power to create offices with the power to appoint officers was a recipe for legislative corruption. The foremost danger was that legislators would create offices with the expectancy of occupying them themselves. This was guarded against by the Incompatibility and Ineligibility Clauses, Article I, 6, cl. 2. But real, if less obvious, dangers remained. Even if legislators could not appoint themselves, they would be inclined to appoint their friends and supporters. This proclivity would be unchecked because of the lack of accountability in a multimember body -- as James Wilson pointed out in his criticism of a multimember Executive: "Ignorant, vicious, and prostituted characters are introduced into office; and some of those, who voted, and procured others to vote for them, are the first and loudest in expressing their astonishment, that the door of admission was ever opened to men of their infamous description. The suffering people are thus wounded and buffeted, like Homer's Ajax, in the dark; and have not even the melancholy satisfaction of knowing by whom the blows are given."


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