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Friday, October 29, 2004

Best title I've read in a while

I think the scenario he paints is extremely improbable, but I'm hugely amused by Mark Moller's essay in Slate entitled "I Know What You Did Last Recess." 

Posted by Beldar at 01:38 AM in Law (2006 & earlier), Politics (2006 & earlier) | Permalink


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(1) Voice of Reason made the following comment | Oct 29, 2004 2:32:13 AM | Permalink

Oh, come now. It's an amusing title, but it can't hold a candle to "NBC Pooh-poohs Qaqaa".

(2) G. Andrew Duthie made the following comment | Oct 29, 2004 8:42:31 AM | Permalink

Moller's essay also highlights, once again, the idiocy of Teddy Kennedy's arguments. For example:

"One of Kennedy's arguments is that federal cases must be decided by judges with life tenure and protection against salary cuts. Because a recess appointee depends on the Senate for his continued job security, says Kennedy, he isn't truly independent."

Federal judges aren't truly independent, no matter how they're appointed. They are always, according to the Constitution, subject to the jurisdiction of Congress. Article III, Section 1 makes quite clear that Congress has the power, should it choose, to completely abolish any court other than the Supreme Court, and suggests to me that they could also remove judges who are lacking in "good behavior", IOW impeachment. All of which renders Teddy's point meaningless (no real surprise there) as regards recess appointments. Just because Congress does not typically exercise their power over the judiciary (part of the reason, IMO, that there's so much judicial activism today) doesn't mean that power doesn't exist, no?

Kennedy's point also completely ignores the fact that nearly 85% of the recess appointees as of 2001 were confirmed by the Senate, hardly a record that would suggest that judges would feel held hostage by their pending approval. Of course, given that Kennedy is among those working hardest to ensure liberal ideological purity on the courts, it's no surprise that he'd think that Bush recess appointees should be intimidated. But I think his argument is a red herring of the worst sort.

(3) Steve L. made the following comment | Oct 29, 2004 9:20:18 AM | Permalink

The tin-foil-hat brigade must love this. They will think this scenario is a conspiracy. Rove poisoned Rhenquist to make him sick to get him off the bench so the President could appoint a chief justice that would ensure he won.

Damn you Karl Rove!

(4) bbbeard made the following comment | Oct 30, 2004 3:16:23 AM | Permalink

Umm, wouldn't the new SCOTUS judge be obligated to recuse himself (herself?) from Bush v. Kerry?


(5) Beldar made the following comment | Oct 30, 2004 3:23:26 AM | Permalink

In a word, Bbbeard, no. No moreso than did the Justices in Bush v. Gore in 2000. Having been appointed by a president who's a member of one particular party isn't considered grounds for recusal in a dispute between those parties; otherwise the federal courts could never resolve such disputes. Whatever arguable apparent conflict of interest exists is deemed to be overcome by the "Rule of Necessity."

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