Matheson v. Ferry

DURHAM, Justice

(concurring in the opinion of STEWART, Justice):

I join fully in the opinion of Justice Stewart, although acknowledging that it constitutes a departure from and a partial overruling of the majority holding in Matheson I. I believe that the rationale of the majority opinion in Matheson I was inconsistent with the result of its holding for juvenile and circuit court judges who are selected before appointment by nominating commissions on which there are no legislative appointees. I further believe that the rationale of Matheson I was inadequate in failing to focus directly on the question of the constitutionality of Senate confirmation itself, apart from its combination with the use of judicial nominating commissions. For these reasons, I feel compelled to join Justice Stewart’s departure from the majority opinion in Matheson I. Whereas I would ordinarily regard myself as bound by principles of stare decisis to apply the analysis of a majority in a prior case, I believe it to be more valuable to adopt a position consistent with my own assessment of a constitutional issue of such far-reaching significance as that presented in this case.