One curious problem that is quite obvious on the face of the majority opinion is its selectivity of resources. On the one hand, it refers to the Constitution and the Federalist; on the other hand, it refers to a common English-language dictionary; but nowhere does it refer to any parliamentary-procedure documents, either contemporary to us or contemporary to the Founders. Hint: There is a specific meaning of "recess" in parliamentary procedure (under both Robert's and Reed's respective sets of rules) that probably does not include the intrasession gap in February 2004. If nothing else, this meaning should have been acknowledged and rejected, rather than just ignored.
14 October 2004
at 16:20 [UTC8]
The Eleventh Circuit has just issued an order in a matter involving the "recess appointment" of William Pryor to that court. I'll blawg this in more detail after a little bit more thought, but I'm rather disturbed by the majority's conclusion that the "stealth recess appointment" of Judge Pryor was a proper use of the recess-appointments power. I think that the second dissent had the best analysis: That the Eleventh Circuit had no business deciding the matter itself, and should have certified a question to the Supreme Court.