What would happen if there was another Supreme Court vacancy before January 2009 and Senate Democrats followed Senator Schumer's counsel and successfully blocked the confirmation of another Bush nominee? One possibility is that President Bush would make a recess appointment. Such action is hardly unprecedented. According to C-Span, there have been 15 recess appointments to the Supreme Court. The first was John Rutledge, who was given a recess appointment to be Chief Justice by President George Washington in 1795. As noted in this report, President Eisenhower made three recess appointments to the Court — Earl Warren, William Brennan, and Potter Stewart. Brennan, in particular, was placed on the Court in the midst of the 1956 Presidential campaign, arguably for political reasons.
I am not a fan of recess appointments to Article III courts. Nor am I a fan of Senate obstruction of judicial nominees. Whichever party wins the White House in 2008, I hope to see a de-escalation of judicial confirmation fights after January 2009, if not before. Unfortunately, remarks like Senator Schumer's on Friday — and the likely GOP response — do not bode well in this regard, and we may actually see another recess appointment to the nation's highest court.
UPDATE: Given some of the comments, I thought it was worth posting a link to this summary of my views on judicial nomination fights.
You can hope all you want about de-escalation after the next election, but it's not going to happen and, if the Dems take the Presidency, I will insist that it doesn't.
The only way for this to de-escalate is for liberals to accept that they can't always get their way in a democracy. If a law is un-Constitutional, fine, strike it down. But simply because you don't like what the voters and their elected representatives passed doesn't make it un-Constitutional.
Perhaps you think that the whole process is too politicized, but that includes presidential selection of SC candidates.
The President will probably make recess appointments anyway, arguing that the pro forma sessions are really a recess. And the Senate will probably counter that, even if that is true, the President was never intended to be able to make appointments during short recesses. Perhaps the Supreme Court will be forced to clarify what the word "recess" means.
"Nearly a third of the public — 31 percent — thinks the court is too far to the right, a noticeable jump since the question was last asked in July 2005. That's when Bush nominated John Roberts to the court and, in the six-month period that followed, the Senate approved Roberts as chief justice and confirmed Justice Samuel Alito.
The increasingly polarized court this year moved to uphold restraints on abortion, restrict student speech rights and limit the ability of school districts to use race in student assignments.
The public seems to have noticed the shift. The percentage who said the court is "too conservative" grew from 19 percent to 31 percent in the past two years, while those who said it is "generally balanced in its decisions" declined from 55 percent to 47 percent." WaPo 7/28/07
Why not also note that Specter intends to investigate whether the good Justices were less than candid? He claims to feel misled by their testimony, both public and private.
Particularly galling is the stark partisan 5-4 votes from a man who was held up as a uniter, not a divider. Most Americans don't understand the legal underpinnings of the courts fractured opinions, but they can see the results...
and they don't like them.
as for a recess appointment, it would be the perfect FU coming from this President.
Conservatives, on the other hand, need not accept this proposition . . .
i think it's worked this way more often than not.
Rather than look at which way the ideological wind is blowing on the Court, the better approach is to say that the Court may be too conservative, or it may be too liberal, but in either case it is too important. More robust deference to elected officials is the only way this situation will de-escalate.
Aron and Neas(PFAW) note that it was conservative anger over court decisions that fueled the right's interest in the federal courts, and they hope that this term's decisions similarly upset activists on the left. "Before, it was hypothetical," Neas said."
The Rehnquist Court will be perceived as less radical than the Roberts Court and people will blame Roberts, Alito and Bush.
I predict public satisfaction with SCOTUS will continue to fall and a concerted Democratic effort will be made to mitigate the worst of their decisions and nudge the system back into balance. If it began falling as the Roberts/Alito decisions were slowly revealed, I'm not sure it's stopped.
I also love people who are ignorant of history. Do people really think this is the first time there has been ideological anger at the Supreme Court? Do the words "Impeach Earl Warren" mean anything to anybody? Oh brother. Schumer (and Specter, for that matter) is small potatoes compared to the grass-roots anger of the 1960s.
On a side note, I suppose Senator Schumer would agree that a GOP senator in 1995 would be right to agree not to vote for any future Clinton SCt nominee, correct? After all, judging by the 1994 election results, the country was clearly becoming more conservative, so the prevoius nomination of two liberal Justices (Ginsburg and Breyer) was out of step with the nation, correct? Because that seems to be the exact same analog to today's case, at least under Schumer's curious logic.
I hope to see Eva Mendes slink into my bedroom carrying a dusty bottle of 1990 Haut-Brion.
And I think my hope has a better chance of happening than Adler's hope.
Why not? The very use of the word "obstruction" suggests that you think it is illegitimate for the Senate to block nominees. But suppose the President puts forward an unacceptable nominee. Is it the Senate or the President who is "obstructing" the filling of a vacancy?
Whne there is a dispute over a nomination, or over legislation, either side can give in. So either both are "obstructionist" or neither is.
What party do the 5 represent? What party do the 4 represent? Can you list the party representation for each of the nine?
and thank you Elliot for asking that because it's a good point. this is not a progressive/conservative division, but a conservative/conservative division in many respects.
with the cultural conservatives, appointed by other cultural conservatives who hold minority views on income distribution, affirmative action, abortion, police power, the death penalty and religion. as noted by me above, these attitudes are at odds with mainstream america.
The real story is the Courts of Appeals, where the Dems have decided to sit on Bush's nominees, possibly for the rest of the term. We've got three openings down here in the 5th, and if they stay empty until the next election, the Circuit could go from perhaps the most conservative in the country to fairly liberal. It would be a remarkable shift, and the results of Death Penalty appeals would change almost immediately.
We should be talking about the Circuits, where there's action happening, and remember that Supreme Court vacancies are a rare beast. There wasn't an opening from 1994-2005, and there's not likely to be another one for at least 3-4 more years, until well after the next election. The Court won't have an opportunity to move left again for at least another decade. (Unless Scalia smokes himself into the grave.)
Oh, and if Republicans win the presidency, they'll get their justices. You can't sit on a nominee for 4 years...
I realize that there have been recess appointments of judges in the past. But that doesn't mean its necessarily right. And it seems to me that there is some tension between the clause allowing the Pres to make recess appointments, and the constitutional requirement that Article 3 judges have life tenure.
Yes, a couple of people actually tried to challenge William Pryor's appointment to the 11th Circuit but it didn't work.
After '08
(1) If we have a Republican Pres &a Dem Senate, this war will go on.
(2) If we have a Dem Pres &Dem Senate, the MSM will have a story every day about justice being delayed for ordinary citizens, the ordinary citizens they'll parade for the public. Republicans will roll over.
(3) If we have a Republican Pres &a Republican Senate but such Republican majority is less than 60-40, will the Republicans throw out the “60 votes needed to stop a faux filibuster rule”? Don't bet on it. And bet on the MSM not having any story about justice being delayed for ordinary citizens, none of whom they'll parade for the public.
Liberals love to redefine the center as their current position even as that position moves constantly left. The Roberts court is to the right of Ted Kennedy and the New York Times, so left wing hate groups like PFAW will attack it. It is still left of center. The Democrats have escalated this conflict to point of no return. Any Republican Senator who fails to hold up any Democratic President's nominees to any court will be looking for work.
So if the cultural conservatives views are at odds with mainstream america on these issues, why doesn't mainstream america enact legislation that reflects its views. Restrictions on abortion are not enacted by the Supreme Court--they are enacted by the legislature. Ditto laws regarding the death penalty, police power, religion and income distribution. For the most part, the only area among the ones you list where the Supreme Court has restricted hands of the legislature is in the area of affirmative action and even there the executive and legislative branches are given significant wiggle room by the swing justices.
So, for example, if mainstream America opposes restrictions on partial-birth abortions, shouldn't actions be directed against the Senators and Congressmen who enacted the restrictions rather than against the Justices who allowed the restrictions to stand?
Not quite. He said that future Bush nominees are quite likely, though not 100% certain, to be unacceptable.
You are correct about the language of the Constitution, but that does not change the substance of the point.
Recess appointments do not hold their seats "during good Behavior" but rather lose them at a set time regardless of how they behave.
Hmmm, I think most court commentators would shift those categorizations to the right. Ginsburg and Stevens are unquestionably liberal, but I'm not sure they are "extreme leftists". Stevens was appointed by a Republican and was probably a centrist during his early years on the court, while Ginsburg was appointed by Pres. Clinton, a moderate Democrat. Both appear to be very liberal in contrast to the current makeup of the Court, but that doesn't make them "extremists". Breyer and Souter are generally regarded as center-left justices, Kennedy is generally regarded as center-right, while Alito and Roberts are generally regarded as mainstream conservatives (Federalist Society ring any bells?). Scalia and Thomas are unabashedly proud to be highly conservative. I don't want to use a loaded word like "extreme", but they are unquestionably and solidly conservative. In fact, Scalia and Thomas were almost always even more conservative than Chief Justice Rehnquist during the time they served on the Court together.
I think any fair discussion of the Court's current political composition has to honestly acknowledge that the Court became fairly moderate to conservative following the appointments of Scalia, Thomas, and Kennedy (and the departures of ultra-liberal stalwarts Brennan and Marshall). The Court has recently shifted to a more reliably conservative posture with the appointments of Roberts and Alito (and the departure of centrist O'Connor). All that being said, I think having justices with a wide range of political backgrounds on the Court is valuable for the discussion and development of the law. I'm also not a supporter of blocking nominees just for the sake of blocking them, or only because they are thought to be "liberal" or "conservative". But please, let's at least be honest in ackowledging the political leanings of the present Court as well as the impact of future nominees on the Court's political temperment.
Religion and politics have always been dangerous bedfellows. Christian fundamentalists have brought a backward looking, anti-scientific movement into US politics. The rise of militant Islamic parties has reintroduced theocratic notions that were thought to have died with the Dark Ages. But there is another, less publicised movement that has been quietly pushing at the doors of power on five continents. Opus Dei, the controversial organisation at the heart of the Roman Catholic Church, is seeking to recreate an alliance between the spiritual and secular worlds that was last attempted during the Renaissance - with catastrophic results. - the Guardian 10/10/1997
It's only even arguably true at the district and circuit court levels, and then only for a comparatively short portion of the Clinton Administration. Even at that level, though, there's not comparable fault to find: Shortly after he took office, President Bush re-nominated Roger L. Gregory, a Clinton recess appointee, to a permanent seat on the Fourth Circuit as a deliberate peace gesture, and Gregory was promptly and overwhelmingly confirmed by the Senate on July 20, 2001. But that gesture was utterly spurned by Senate Democrats, who proceeded to historic new levels of obstructionism ever since.
At the vastly more important SCOTUS level, one need only compare the confirmation votes of Clinton nominees Ginsberg (96/3!) and Breyer (87/9) to Bush-41 nominee Thomas (52/48) and Bush-43 nominees Roberts (78/22) and Alito (58/42) to dispel any doubt about which side has been more guilty of voting based on ideology. By any reasonable, objective standard, Chief Justice Roberts was at least as well qualified and scandal-free as Justice Ginsberg. That fully half of the Senate Democrats nevertheless voted against Chief Justice Roberts' confirmation simply explodes any notion that they were concerned with "fitness" in any other sense but ideology.
in contrast, Bush's nominations were chosen to appease a culturally conservative base. He had a rubber stamp congress and all the Dems could do was protest by voting Nay.
what i think is historically unusual is a modern president appointing SCOUTUS picks by a Party controlled congress.
this explains the votes.
No. Both Breyer and Ginsberg were nominated and approved during the 103rd Cnogress (1993-94) when Democrats controlled the Senate.
It would seem that no conservative judicial candidate who truly wanted a federal judgeship in his future would ever agree to a recess appointment. So, list the conservatives who are at the end of their careers, are reliably conservative to ignore the blood lust of the ultra-left wing whackos and you've got the slate of recess appointments.
Again, I do like Bork.I don't like Scooter Libby as a federal judge but would certainly support Alberto Gonzalez and John Ashcroft for recess appointments to the Supreme Court, especially as a replacement for Justice Ginsberg.
I have yet to see the cases that are going to make any significant number of people who aren't already dyed-in-the-wool Democrats (or Dem-aligned minor party members) extremely upset at the Roberts Court.
Upholding the federal partial birth abortion ban? Those people don't vote GOP to begin with.
Striking down the Seattle schools "racial balancing" plan? Totally off the average person's radar screen. Plus, most of the rest of the country equates that with busing.
Habeas cases of Guantanamo detainees? Kinda hard to complain when the administration has high-profile losses here.
McCain-Feingold? The ACLU isn't on your side on this one either. Good luck building a coalition.
Antitrust cases? Let me know when you find 20 non-lawyers who have any clue what the rule of reason refers to.
Death penalty cases? Most voters are supportive of the decision, and most of the rest don't care much what happens to the scumbag as long as they know he's not a danger to them anymore.
I know. You're going to get masses of Americans up in arms about whether a high school brat can be disciplined for holding up a "Bong Hits 4 Jesus" sign. In the words of Nelson from The Simpsons: Haa Haa.
Nick
The "paper trail" issue arises because even when in the minority, Democrats can count on their allies in the news media to help them drown a nominee with slander, if the nominee has ever said or written anything that can be distorted into a "wrong" sentiment.
Article II, Section 2 of the Constitution says, "The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session. "
The word "next" in "next session" implies that the Framers of the Constitution meant "session" to mean the time between recesses and not the two-year term of Congress. If the Framers meant "session" to mean the latter, then the correct term would be "current session" rather than "next session." And does it make sense that the Framers would have created a major loophole for bypassing the will of the Senate by allowing these recess appointments to be valid for the remainder of the two-year term of Congress? And if the Framers intended to create such a loophole, then why are these unapproved temporary appointments restricted to the recesses?