Held on February 6, 2015
8:45 AM–4:30 PM
Duke University School of Law
Session 1, Part II – Appointment Delays
00:01 Question & Answer Session
43:00 Audience question and answer session
52:00 Audience question and answer session
1:52:10 Closing Remarks (with Paul Light)
Duke Law Journal’s 45th Annual Administrative Law Symposium explored rising dysfunction within the federal appointments process. Among other topics, the symposium covered the increased political polarization of the Senate confirmation process, recent rulemaking changes eliminating the use of the filibuster for executive branch nominations and most federal judicial appointees, and the formalist and functionalist readings at work in the Supreme Court’s recent interpretation of the Recess Appointments Clause in NLRB v. Noel Canning.
The day began with a debate over the impact of long-unfilled vacancies on the federal appointments process, emphasizing the changes occasioned by the November, 2013 filibuster reform. This panel featured papers by Professors Anne Joseph O’Connell (Berkeley Law) and Nina Mendelson (Michigan Law), with commentary by William Galston (The Brookings Institute) and David Lewis (Vanderbilt Law School). In Session 2, the focus shifted to the historical development of the appointments process and role that politics continues to play, some would say increasingly, in its evolution. Session 2 featured papers by Professors Russell Weaver (Louis D. Brandeis School of Law) and Gillian Metzger (Columbia Law School), with commentary by Professors Steven Friedland (Elon Law) and Stuart Benjamin (Duke Law). In Session 3, the symposium addressed the Supreme Court’s 2014 Recess Appointments Clause decision in Noel Canning. Professor Ronald Krotoszynski (Alabama Law) presented his paper about the differing functionalist and formalist approaches of the justices, with commentary by Professor Josh Chafetz (Cornell Law School).
Each session was moderated by faculty members at Duke Law School. Professor John de Figueiredo moderated the first session on “appointment delays”; Professor Marin Levy moderated the second session on “appointment politics”; and Professor Curtis Bradley moderated the third and final panel on “recess appointments.”