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[Eugene Volokh, September 4, 2005 at 6:52pm] Trackbacks
Recess Appointments:

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.

cfw (mail):
Assuming Bush wants Scalia as CJ, Edith Clement and Roberts, and Edith is confirmable (no nanny issues, etc.), why not do all three things now? A bit of a change of course on Roberts. Arguably wise to postpone and consolidate confirmation issues until after Katrina issues simmer down. May look imperious, or simply decisive.
9.4.2005 9:24pm
NYCer:
I really hate to be partisan here. I'm not even a Democrat. (I'm an anarcho-capitalist, for the record). But lord, this is just begging for the demos to appoint people (which they will soon have the power to do: look at the train wreck we have now). Then what will you say. I'll be amused to hear the voices from the right who allow a liberal justice sail through with nary a question because it is inappropriate. I think we should start counting how many folks would like to commit their name to the list. Please sign on, here.
9.4.2005 9:26pm
CrazyTrain (mail):
Politically shrewd?? Evidence of why this fellow is a lawprof and not a politician. As thousands lay dying in the Gulf States, Bush takes time out to stick his nose in the face of the opposition --- that will play very well politically. . . .
9.4.2005 9:34pm
Daniel Chapman (mail):
NYCer: While it's true that most recent SCOTUS nominations have been made by republicans and there isn't a lot of recent history to go on, compared to Breyer and Ginsburg, the democrats should probably be worrying that next time the republicans WON'T allow a justice to sail through.

(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.)
9.4.2005 10:28pm
GMS (mail):
Of course, if he makes a recess appointment, the appointee would be a member of the Court through the end of this Congress. Does that mean that there wouldn't be a vacancy until the end of the Congress, and hence no confirmation hearings for a permanent appointee for another year or so? That might put the president into a box, since you could be having hearings in the next Congress, which might not be so Republican. Or maybe the recess appointee could pull an O'Connor, and immediately announce his resignation effective upon the confirmation of his successor (who would probably be himself, if Bush used a recess appointment to put his permanent appointee in early). Wait, I'm getting dizzy ...
9.4.2005 10:33pm
stillers_fan:
Since its answer may have even more relevance now that there is a second vacancy--and potentially the re-nomination of Roberts as Ch. J.--where do we stand on the question of whether O'Connor can actually sit for the October term if a successor has not yet been confirmed?
9.4.2005 10:47pm
NickM (mail) (www):
Recess appointments of Supreme Court Justices were once rather common, and were followed in fairly short order by confirmation hearings. In today's political climate, where so much attention is paid to Supreme Court nominations, I expect a recess appointment of a sitting justice as Chief Justice would not matter to the public (try convincing a swing or undecided voter that it matters which seat on the Court a particular judge occupies), but a recess appointment to the Court of someone not currently sitting there would be a political negative.

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
9.4.2005 11:06pm
Larry Faria (mail):
To NYCer and others who seem to read media polls and expect a demo tidal wave soon, I think you're mistaken. I'm a liberal democrat who grew up and first voted in Massachusetts. I'm a Kennedy liberal - John F. Kennedy. That makes me a right-winger in my party, at least to the far-left neo-communists. From what garbage is put out by that wing, and the brain-dead inaction of party leaders and office holders, I expect the democratic party to lose seats in both houses in the next election, possibly a lot of seats. The neo-coms are behind the wheel and they're reckless drivers. Until local and state party leaders revolt and get the party back in the business of persuading the public to elect their candidates, there will be republican court nominees as far as the eye can see.
9.5.2005 1:13am
Syd (mail):
I think you're one hundred percent off. I expect the Democrats to regain control of the House in the next election. I think the Senate might be out of reach though.
9.5.2005 1:53am
Dustin (mail):
Syd, do you have any reason for thinking this?

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.
9.5.2005 4:23am
jgshapiro (mail):
What about recess-appointing O'Connor for CJ? She could stay one more term and her successor could take over at the end of the upcoming term. Roberts would take her current (associate justice) seat.

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.
9.5.2005 5:17am
 
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