Fellow lawprof Tuan Samahon asked me to post this; I express no opinion on its merits, but it struck me as interesting:
Is the Senate still in recess today (Sunday, Sept. 4, 2005) such that the President could exercise his intrasession recess appointments power to name a temporary replacement for the Chief Justice? The August recess (August 1 to September 5) lasts until Tuesday, when the Roberts nomination will occur. There was a brief 39 minute emergency session of the Senate last week, but the Senate then adjourned again. Are we still in recess such that the POTUS could appoint a recess appointee to the Rehnquist vacancy, either the presumptive permanent nominee or a caretaker? Obviously, there is precedent for such recess appointments to the Supreme Court (Brennan, Stewart, Warren, Holmes, among others). In light of the risk of starting the term short a justice, it might well be justified. And politically, it might be shrewd for the Administration to so do.
(although to be honest, I can't remember if there was really much to object to about Breyer at the time... he sure didn't get the probing treatment like Roberts is getting from PfAW and NARAL.)
I think the courts got it wrong long ago when they held that there can be a recess appointment to a life-tenured Article III judgeship, but that's a different issue.
Nick
Obviously not the polls, where generally, 29% republican representation is the order of the day.
The house rewards incumbancy and recent redistricting makes it very very very very difficult for the Democrats to take the house.
Perhaps you are wishfully thinking. POlitical oddsmaker, predicts the house will belong to the republicans, and they do this stuff for a living.
I ain't saying it's impossible, but it would shock the people who analyze this stuff for a living and you provided no reason for your "100 percent" belief.. which, I might add, you only differed 50% on.
recess apointments are wrong. This particular court will function well as is, 4/4 decisions will likely be avoided. We take the risk of lossing credibility? People these days are looking hard for things to be mad about.
No one would object to O'Connor's promotion, especially if it was for only one term, and it would keep the Court at 9 justices with no interruption.
Bush would also get some credit for appointing the first woman for CJ, even if it was a short-term appointment. Plus there's not much chance she would stay beyond that, since she obviously wants out now.