Notice & Comment

“To Allow Members of Congress to Change Hats ….”: The Legacy of Chief Judge Abner Mikva

One of the most unusual cases you will ever read is McClure v. Carter —from the District of Idaho, in 1981. The case was a constitutional challenge to a judicial appointment, brought by a sitting U.S. Senator. That’s unusual by itself. The case is more unusual still, however, because the suit was brought under a special statute stating that “[a]ny Member of Congress, whether he voted to confirm or not to confirm the appointment of any judge appointed during the 96th Congress to the United States Court of Appeals for the District of Columbia . . . may bring a civil action in the United States District Court for the District of Columbia or in any United States District Court in the State he represents to contest the constitutionality of the appointment and continuance in office of said Circuit Judge on the ground that such appointment and continuance in office is in violation of Article I, section 6, clause 2 of the Constitution.”“Article I, section 6, clause 2 of the Constitution,” of course, contains the Ineligibility Clause—“No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time.”

The judge in question was Abner Mikva, who went on to serve as Chief Judge of the D.C. Circuit. Judge Mikva passed away this morning. McClure provides good insight into Mikva—a fighter who did not stay in any one place too long.

Let me quote from the three-judge district court opinion in McClure.

Congressman Abner J. Mikva was nominated by President Carter as circuit judge for the District of Columbia Circuit. A number of senators, including Senator McClure, opposed the appointment. Indeed, a number of these senators, again including Senator McClure, voiced their opposition on the Senate floor, relying in their arguments on their belief that then-Congressman Mikva was philosophically unsuited to the job, as well as on their view that he was constitutionally ineligible for appointment because of the proscriptions of the Ineligibility Clause. These arguments failed to persuade a sufficient number of their fellow senators, and a majority of the Senate voted to confirm defendant Mikva as judge on September 25, 1979.

After the Senate voted to confirm Judge Mikva, Senator McClure and others proposed to the Senate the jurisdictional statute under which Senator McClure now sues. The Senate attached the proposed statute as a rider to an appropriation bill on October 10, 1979, and the House of Representatives agreed to it two days later.

The jurisdictional statute is unusual in several respects. First, it sets out a single substantive ground for challenging a new judicial appointment violation of the Ineligibility Clause. A challenge to a judicial appointment on any other ground must be brought under some other statute. Second, it limits both in time and by institution the judicial appointments that may be challenged under the statute. It authorizes challenges to only those judicial appointments made during the 96th Congress and only those made to the United States Court of Appeals for the District of Columbia Circuit. A challenge to a judge appointed during any other Congress or to any other court must be brought under some other statute. Perhaps not coincidentally, the only judicial appointment that fits within the statute’s limitations and might be subject to challenge on Ineligibility Clause grounds is that of defendant Mikva. Third, the statute authorizes suits by United States senators and members of the House of Representatives, irrespective of whether the senators voted for or against the appointment or, in the case of members of the House, voted at all. Fourth, the statute provides that suit may be brought either in the United States District Court for the District of Columbia or in any federal district court in the state which the senator or member of the House represents, irrespective of the distance between that state and the District of Columbia and irrespective of any connection between that state and the judicial appointment sought to be challenged.

In short, what the statute appears to authorize is a mechanism whereby a senator or member of the House of Representatives may challenge in a federal court in his or her home state the validity of the judicial appointment of a single person, Judge Mikva.

That Judge Mikva was controversial is hardly surprising. Although I never met the man, it is obvious that he had a strong personality. But that also is hardly surprising: no one accomplishes all that Mikva did without a strong personality. Mikva, after all, was the “the original ‘nobody nobody sent’”—“the young man who tried to volunteer to help the Democrats in 1948 and was told by a ward heeler: ‘We don’t want nobody nobody sent,’ the immortal distillation of political cronyism.” He grew up a poor kid, the son of Ukrainian immigrants. He enlisted during World War II (combat ended the day before he was to be deployed), worked his way through the University of Chicago, and then served as a law clerk to Justice Sherman Minton. After his clerkship ended, he went back to Chicago—and had trouble finding a job! Indeed, he was accused of “‘wast[ing] a year of his life.’” Even so, by the time he was 30, he was serving the Illinois as a state legislator representing Hyde Park, and later was elected to Congress. And then he was nominated to the D.C. Circuit.

Now let’s continue with McClure:

[W]e hold that Senator McClure, even with aid of the special jurisdictional statute on which he seeks to rely, does not have standing to bring this suit. The jurisprudential considerations go beyond simply setting proper limits on judicial power and containing its exercise within its rightful sphere. They serve also to protect against other branches of government, no matter how well-intentioned, voluntarily ceding to the federal judiciary powers and responsibilities that rightfully belong to the legislature or the executive. At bottom, the vice of the statute before us is its muddling of the roles, its blurring of the lines between the branches of government.

Members of Congress are the democratically-elected representatives of the people, chosen by them to enact the laws of the United States, to advise and consent to the appointment of policy-makers in the executive branch and judges in the judicial branch, and to perform certain other functions prescribed by the Constitution. The statute under which Senator McClure brings this suit casts members of Congress in the role of special attorneys general, to plead before this court for a second opinion as to whether their judgments were right in voting for or against the confirmation of Judge Mikva. Under the Constitution, it was the duty of Congress itself, in the first instance, to determine Judge Mikva’s qualifications both on the merits and on the issue of whether he was constitutionally eligible to serve as a judge. To allow members of Congress to change hats, as it were, to plead the unconstitutionality of their own acts before this court on the basis of an argument already debated in the Senate but lost there by vote, would, we suggest, set a dangerous precedent. We find that this court does not have jurisdiction, and we accordingly dismiss.

Judge Mikva’s seat on the D.C. Circuit was thus secure—fittingly enough, because of the standing doctrine, a mainstay of the D.C. Circuit. (If you are interested in the merits, the Office of Legal Counsel twice defended the appointment.) And he was a strong voice on the court. Even if you disagree with him, whenever one reads a spirited back-and-forth between Mikva and, say, Judges Bork, Scalia, Silberman, Starr, or Sentelle, one observes a forceful judge in action. (Here’s a sample: “MIKVA, Circuit Judge, dissenting: ‘This case demonstrates the importance of leaving well enough alone.’”) It is not surprising that Justice Elena Kagan, another forceful judge, clerked for him. Mikva, of course, was too restless to stay on the bench. He thus left to serve as White House Counsel to President Bill Clinton.

In McClure, the court dismissively rejected “allow[ing] members of Congress to change hats.” And in context, that dismissiveness may be understandable. But in a broader sense, Judge Mikva’s whole career is a testament to the value of changing hats; he went from poor kid to soldier to student to legislator to judge to presidential confidante. In fact, America is all about changing hats, about dreaming big and never giving up.

Chief Judge Mikva was an American through and through. May he rest in peace.


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