A further abuse by the "great decider"

[Volokh, Eugene]

    Come now:  Can it really be the case that administrations that talk
about staffing the courts with believers in "the living Constitution"
can do whatever they please, while administrations that talk about
staffing the courts with originalists must forego traditionally
established power -- while their adversaries are free to use it all they
want?  Would we think it "especially shameless" for backers of campaign
finance reform, for instance, to accept large contributions, and insist
that they forego such contributions while their adversaries (campaign
finance reform opponents) are free to take them?  Or would we think that
so long as the rules for the political game are what they are, both
sides are entitled to play by them?  If anything is "especially
shameless," it seems to me, it would be a double standard that handcuffs
one side while the other is perfectly free to do whatever it pleases.  
 
    Eugene
 
Doug Laycock writes:
 
 There is no plausible reason to believe that the Constitution allows
for rescess appointments that last for up to two years when Congress
recesses for the weekend.  I understand that the practice has built up
over time and that there are pre-Bush precedents.  But these
appointments are utterly unrelated to the legitimate functions of the
recess appointment power, and they seriously evade and undermine the
advice-and-consent power.  It is unimaginable that the Founders would
have understood the power this way, so this interpretation is especially
shameless for an administration that talks loudly about staffing the
courts with originalists.