July 2011

Former President Bill Clinton said he would exercise the constitutional power to raise the nation’s debt ceiling “without hesitation” if he were faced with a default while serving as president, and would “force the courts to stop me.”

“I think the Constitution is clear and I think this idea that the Congress gets to vote twice on whether to pay for [expenditures] it has appropriated is crazy,” Clinton said during an interview Monday night with The National Memo.

President Obama has sidestepped the question of whether he would invoke the Constitution in the event an agreement on deficit reduction is not reached, saying, “I don’t think we should even get to the constitutional issue. … The notion that the U.S. is going to default on its debt is just irresponsible.”

But several scholars have weighed in on whether the Constitution offers a solution should Congress fail to act. Yale law professor Jack Balkin and Harvard law professor Laurence Tribe have agreed that Section 4 of the Fourteenth Amendment does not authorize the President to act, but Tribe and others have noted that Congress’s behavior in “acting in a way to call the public debt into question” may be unconstitutional, even if there is no clear remedy other than to hold Congress publicly accountable.

In a new blog post, Ohio State University law professor Peter Shane, who specializes in executive power, calls the argument that the President has the power under the Fourteenth Amendment to raise the debt limit “implausible.” He suggests, however, that there is some statutory authority available to the President that would enable him to “provide for contingencies” by deciding for himself in what areas government spending should be deferred in order to keep needed functions operating without borrowing money.

He concludes:

by Jeremy Leaming

The Senate after a typically slow process confirmed J. Paul Oetken as a U.S. District Judge for the Southern District of New York. Oetken is the first openly gay man to be confirmed to a seat on the federal bench.

Oetken, a lawyer who has practiced in the private and public sectors, including time in the Clinton administration’s White House Counsel’s Office, was reported favorably by the Senate Judiciary Committee more than three months ago, a fact Sen. Judiciary Chairman Patrick Leahy lamented today.

Leahy said Oetken (pictured) should have been confirmed quickly after his vote out of the Senate Judiciary Committee. “Yet,” he said, “like so many of President Obama’s qualified, consensus nominees, Mr. Oetken has been stuck without cause or explanation for months on the Senate’s Executive Calendar.”

But Senate Republicans are not interested in budging from their obstinate stance against Obama’s judicial selections.

Leahy noted, “Federal judicial vacancies around the country still number too many, and they have persisted for too long. Whereas the Democratic majority in the Senate reduced vacancies from 110 to 60 in President Bush’s first two years, judicial vacancies still number 91 two and a half years into President Obama’s term.”

The president’s efforts to diversify the federal bench are especially drawing Republican opposition, some have noted. For example, Wisconsin’s newest senator, Ron Johnson, has continued to block University of Wisconsin law professor Victoria Nourse’s nomination to the U.S. Court of Appeals for the Seventh Circuit. Her father-in-law, nationally recognized federal appeals court Judge Richard Cudahy addressed Nourse’s situation during the ACS 2011 National Convention, saying that the Senate is mired in politics and leaving the bench’s oldest judges to carry the heaviest burden among the federal judiciary, which, as Sen. Leahy noted, is beset with too many vacancies.

Despite the fraught judicial confirmations process,  D’Arcy Kemnitz, executive director of the National LGBT Bar Association, noted the president’s efforts to diversify the judiciary.

“Further hopes to diversify the bench are still in process,” she said. “Alison Nathan, a former associate White House counsel and openly gay woman, was also nominated to the U.S. District Court of Southern New York by President Obama in March. Her nomination was approved by the Senate Judiciary Committee last week, and will now be moved to the Senate to be voted on in the near future.”

Sen. Charles Schumer lauded the confirmation, saying, “Oetken is the first openly gay man to be confirmed as a federal judge and to serve on the federal bench, he will be a symbol of how much, we have achieved as a country in just the last few decades. And importantly, he will give hope to many talented young lawyers, who until now, thought their paths might be limited because of their sexual orientation,” towleroad reports.

For more information about the president's efforts to fill court vacancies, see JudicialNominations.org.