Recess Appointments

Rick Duncan nebraskalawprof at
Mon Jan 19 11:56:47 PST 2004

I sent you a link to Randy Barnett's NRO piece
endorsing the use of recess appointments to break up
the log jam in the Senate. Randy suggests that *many*
recess appointments should be made, appointments that
might include the likes of Richard Epstein, Bernie
Siegan, Lino Graglia, and even Bob Bork himself should
a vacancy occur on the Sup Ct. Barnette explains:

"If the Democrats don't like "stealth" candidates like
Miguel Estrada, just wait until they experience the
delights of judges Richard Epstein, Lillian Bevier,
Bernard Siegan, Lino Graglia, and dozens more like
them on the Courts of Appeals. Or how about Morris
Arnold, Alex Kozinski, Richard Posner, Frank
Easterbrook, Edith Jones, or even Robert Bork as
recess appointments to the Supreme Court? For the
White House, the point of the exercise would be to
propose a list of bright and articulate judges who are
far more ideologically objectionable to the Democrats
and their activist support groups than the president's
current nominees....The beauty of this threat is that
it need never be implemented. Once a suitably long
list is circulated privately--or, if need be,
publicly--President Bush can offer not to appoint any
of them in return for a floor vote on all his current
and future nominees....But if Senate Democrats reject
cooperation, then the courts will be packed by
heavyhitter libertarian and conservative intellectual
judges for the next two years."

I love Randy's proposal. Senate Democrats are
preventing up or down votes on judges in order to
appease the extremist special interest groups who pull
their strings, groups like Planned Parenthood and
PFAW. The President will not be harmed by standing up
to this attempt of extremist political factions to
control who is deemed  qualified to serve on the
federal courts. And we may end up with some great
recess judges as part of the bargain, some of whom may
be permanently confirmed.

Way to go, Randy. A provocative piece!

Rick Duncan 

Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902

"The marriage of Marxism and feminism has been like the marriage of husband and wife depicted in English common law: Marxism and feminism are one, and that one is Marxism." --Heidi Hartmann

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