16 January 2004

Kindergarten Recess
Ohdearohdearohdear. The Hon. Charles Pickering, Sr. has just gotten a "recess appointment" to the US Court of Appeals for the Fifth Circuit, courtesy of his good buddy at 1600 Pennsylvania Avenue there in DC. This is a very, very bad idea, for several reasons.
  • As Howard Bashman notes, use of the "recess appointment power" for the judicial branch is probably unconstitutional. Using an appointment power within one's own branch of government is serious enough; using it to another branch is right out.
  • As Professor Solum notes, even if a "recess appointment" to the judiciary is somehow within the bounds of the President's Constitutional authority, "It might be argued that the current adjournment of the Senate is not a recess--because it is not between two different sessions of the Congress." This a correct statement of fact. One need only look at the last statement in the record from the Senate prior to its "winter holiday." The "slippery slope" corollary is obvious, too: What if the Senate just honored a three-day weekend? Or just went home early for lunch one afternoon?
  • Tactically, you don't really think the Democrats will ever allow a vote on Pickering now, do you? He's got less than a year remaining on that appointment (it will expire on 03 January 2005, when the new Senate goes into session after the elections), and will certainly not be reappointed by a Democratic President if the Democrats win in November. Further, by accepting the appointment, Pickering gave up his tenured seat as a district-court judge.

If nothing else, what this appointment demonstrates is that Bush really has no intention of relying upon any criteria other than political loyalty in selecting candidates for the federal bench. I won't pretend that one can "depoliticize" appointments, or even "depoliticize" judges. Law is merely politics continued by other means. The proper term here is "partisanship," not "politicization." <SARCASM> Maybe it's just an honest admission of what the judicial appointment process is all about. </SARCASM> But I hope not.

What concerns me the most is the disdain that a recess appointment of a candidate under a filibuster demonstrates for the rule of law. A recess appointment of a judge is bad enough; when the judge in question could not be confirmed under the preexisting rules (whether internal to the Senate or not, they are still the law), one can reach only one conclusion: Sore loser. As it happens, I'm not a big fan of filibusters; on the other hand, neither do I believe that "advice and consent" means rubberstamping or one-way communication. "Advice" clearly implies communication from the Senate to the President. Under the hoary old theory that every word in a statute or constitution should be interpreted to have meaning, that is a necessary assumption—because otherwise, the clause could have said "consent" alone.

If the filibuster rule is so onerous that it must be changed, then change it. Don't evade it through a dubious appointment. Stop and think for a moment of the potential chaos if a litigant whose case is drawn to be heard before Judge Pickering objects on the record, files a petition for certiorari on having a non-Article III judge decide the case (see, e.g., Northern Pipeline)—and wins. A year's worth of decisions will go out the window in an eyeblink. As averse to this result as I think the Supreme Court would be, distinguishing Northern Pipeline is going to be awfully difficult. And I don't even want to think about what happens in panel decisions that go 2-1 with Pickering in the majority…

Am I just paranoid, or do I see the Macchiavellian hand of Karl Rove in this?