Bush just appointed Judge Pickering to the Fifth Circuit, though he had been blocked in the Senate before. I’m surprised, though, that they’d lead with Pickering — why not Miguel Estrada, who seems like he’d be politically more appealing? Is he coming down the pike? Or would some nominees not be even willing to consider a recess appointment, which means much more public controversy, and the risk that the person again won’t be confirmed for the permanent appointment? A temporary shift into the judiciary, followed by having to go back into private practice, can be quite disruptive of one’s professional life.
By the way, what would happen to Pickering, who’s a federal district court judge now, if he isn’t confirmed for the permanent appointment when his name is sent up again? Would he automatically return to the federal district court? Or would he lose that job permanently, at least until he’s reappointed to the district court and confirmed for that position? I assume he’d lose the district court judgeship immediately and permanently, but I’m not positive.
UPDATE: Incidentally, it seems to me quite certain that if Bush had appointed California Supreme Court Justice Janice Rogers Brown to a recess appointment, and then she wasn’t confirmed for a permanent post by the Senate, she would lose her California Supreme Court seat permanently (unless Gov. Schwarzenegger reappoints her eventually, but even if he’s willing, Brown’s California seat would have to be filled immediately, and if she’s not confirmed for a permanent post, it may be several years before there’s another California vacancy for her to refill).
FURTHER UPDATE: Larry Solum writes:
As I understand it, Miguel Estrada was also offered a recess appointment, but turned it down–presumably for career related reasons.
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