Recess Appointments

Paul Finkelman paul-finkelman at utulsa.edu
Mon Jan 19 15:07:17 PST 2004 

it is nice that Rick and I love each other!

Rick Duncan wrote:

>I like Randy's article a lot, and I don't see how it
>is contrary to originalism for him to endorse the use
>by the President of an *explicit power* to make Recess
>appointments. As Randy says: "Recess appointments have
>an impeccable historical pedigree; beginning with
>George Washington, presidents have made recess
>appointments to Article III courts. Since the Founding
>there have been more than 300 recess appointments of
>Judges. President Eisenhower and Kennedy made 53 such
>appointments betweem them." 
>
>Moreover, because a minority of the Senate has decided
>to prevent an up or down vote on a number of highly
>qualified nominees, this seems to be a particularly
>appropriate use of the power by President Bush. Again
>according to Randy, "The Founders created the
>recess-appointment power to assure that the judiciary
>could continue to function if circumstances *or
>political factions* prevented the Advise and Consent
>process from functioning effectively."
>
>I absolutely love it when Prof. Finkelman accuses
>others of being "crass ideologues."  
>
>My own view of this issue is to applaud the President
>for responding to an attempt by extremist special
>interest groups to hijack the power to appoint judges
>to the federal bench. I hope the Pickering recess
>appointment is a sign that President Bush has finally
>recognized that a political war is being fought over
>judicial selection and it is time for him to fire
>back. Perhaps when the Senate Dems realize that the
>punching bag is swinging back, we can get to the point
>where the Senate exercises its Advise and Consent role
>properly by voting on each nominee.
>
>Cheers to all, Rick Duncan
>
>
>--- Paul Finkelman <paul-finkelman at utulsa.edu> wrote:
>  
>
>>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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>>>
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>>
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>>>      
>>>
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>>
>>    
>>
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>  
>
>>> 
>>>
>>>      
>>>
>>-- 
>>
>>
>>
>>
>>    
>>
>
>
>=====
>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
>
>__________________________________
>Do you Yahoo!?
>Yahoo! Hotjobs: Enter the "Signing Bonus" Sweepstakes
>http://hotjobs.sweepstakes.yahoo.com/signingbonus
>  
>

-- 
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


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