Friday, February 20, 2004 - The Progress & Freedom Foundation Blog

Recess Appointment No. 2

Back in September, I wrote a piece in Legal Times called "Checkmate in the Judges Game" urging President Bush to use his recess appointment power to try to break the Senate filibusters holding up several of his key judicial nominations. I wasn't really that optimistic that he would do it, but in January, the President appointed Charles Pickering to the Fifth Circuit Court of Appeals on a recess basis. And today he has given a recess appointment to the Eleventh Circuit to William Pryor, Jr., the Alabama Attorney General, who was nominated to the bench more than 10 months ago and whose nomination had been favorably reported out of committee.

Here's what I wrote back in January in this space when Judge Pickering received his recess appointment:

It's Recess Time
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!
- posted by Randolph May @ 1/16/2004 04:12:27 PM

Well, that's still my view. An election year is a good time, maybe the only time, to have a constitutional conversation about the role of the courts, the confirmation process, and proper modes of constitutional interpretation. Such a ongoing dialogue--and the education that results--is essential to maintaining a culture which repects the rule of law.

posted by Randolph May @ 8:30 PM | General