Recess Appointments

[Paul Finkelman]

It is always charming when people who claim to be conservatives and 
originalists and faithful to the constitution expose themselves for 
merely being crass ideologues when the Constitution does not provide the 
political results they want. It is especially charming in this case when 
those same people (and I don't know if this is true Rick's case because 
I was not on the list then, but it is true for others), made 
constitutional arguments against the same procedure in a previous 
administration that was not to their liking.  

The Pickering appointment reminds me of another recess appointment of a 
man close to Pickering in ideology. President Jackson made a recess 
appointment when he made  Roger Brooke Taney his Secretary of the 
Treasury.  Taney embarked on a disastrous ecnomic policy of pulling 
deposits out of the Bank of the United States, thus setting the stage 
for the Panic of 1837 -- the second worst depression in U.S. history. 
 The Senate refused to confirm Taney.  Jackson  then nominated Taney for 
the Supreme Court, and he was once again not confirmed, this time by 
indefiniate postponement of a vote.   Jackson later nominted him to be 
Chief Justice, and he was confirmed, becoming the most infamous Chief 
Justice in history  As Charles Sumner said of Taney, his name would be 
"hooted down the page of history."  Perhaps Judge Pickering will join Taney.

Paul Finkelman

Paul Finkelman
Chapman Distinguished Professor of Law
University of Tulsa College of Law
3120 East 4th Place
Tulsa, OK   74104-3189

918-631-3706 (office)
918-631-2194 (fax)

paul-finkelman at utulsa.edu



Rick Duncan wrote:

>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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