I just heard that President Bush has given Charles Pickering a recess appointment to the federal bench. In my September 8 column for Legal Times, "Checkmate in the Judges Game," I recommended that, in light of the Democrats' Senate filibusters of the President's judicial nominees, he offer some of the stalled nominees recess appointments. At the time, I think I was the first, or certainly among the first, to urge in writing the recess appointment course of action.
As I said in my column, even apart from the merits of any of the specific nominees--and I am not here commenting on Mr. Pickering's qualifications--a few judicious judicial recess appointments are so likely to rile up the Senate filibusterers that the action may well ignite a healthy constitutional conversation. This constitutional dialogue would concern the appropriate role of federal judges in our judicial system, including those who sit below the Supreme Court; preferred modes of constitutional interpretation; the level of deference that the Senate should accord the President's judicial nominations; and the boundary that separates the "extreme" from the "mainstream" in our constitutional jurisprudence.
Not unimportant topics for discussion in a democracy during an election year!