Is it Fall Yet? I sometimes feel that I'm melting as much as the Mets do in late innings when Pedro pitches (two more no decisions!).
Marty Lederman, who has banged the drum continuously on the war crimes ongoing in our detention camps (as with 'R' rated movies, since it involves violence and not sex,* it is not impeachable), is also connected to the challenges to the recess appointment of Judge Pryor. Or, rather "recess" appointment, since neither he, Bolton, or a couple others were really appointed during a recess as the term should be interpreted. I concur.
One response, while agreeing with his basic point, suggests that (unless they manage to do so nearly unanimously) the Supremes should punt -- it's a "political question." On another blog cited in the piece, he had the nerve to cite Bush v. Gore. First, this issue is just not comparable. Second, "political questions" have been decided by the courts for years, including the issue of congressional power per @5 of the Fourteenth Amendment. Why is this somehow special?
Finally, the assumed "necessity" ground that the President's nominees are being blocked is specious. Delaying nominees is not new. And, the whine (for that is what is sounds like after a while) that the poor President is having his powers diminished is equally specious -- arguably, the Senate has a similar claim. That is, those who have the guts to say so (and in our system, this would often be his political opponents; see Federalist Nos. 10 and 51). The SC is supposed to serve as an arbitrator when separation of power principles are abused. They were here.
The response apparently is that history has accepted this process ... well, at least since the 1920s. But, in actuality, very few federal judges were recess appointed, that is, "recess" appointed using the "whenever the Senate is not in session" standard. [Thus, the current habit of Supreme Court justices only stepping down once a replacement is confirmed.] And, this is the apparently is the first time an UN ambassador has been. Furthermore, I have a belief that clear text, especially once mixed with structural arguments (e.g., the end around of the advise and consent process) should be followed. Original meaning would follow too, though I honestly am somewhat flexible in respect to this area. [The meaning does change some over time.]
Still, there does not seem to be any functional etc. reason to allow recess appointments during brief breaks or when the Senate is already examining the nominee. Perhaps, special cases, or for relatively minor offices. But, this does not show up here. Token, politically motivated, appointments are patent abuses of the system. And, Judge Pryor is particularly troubling: a federal judge not truly serving under "good behavior," but on a term that might just lapse in less than two years. The Bolton installation also has various negative consequences.
One doubts if the Supreme Court will decide the matter, and surely won't in respect to Bolton (probably no way to get standing). Still, since the integrity of the federal courts are involved, they really should deal with the Pryor situation. Judicial matters are the clearest areas where judicial review is proper, even when some self-examination is required. A President has a veto in part to protect his power. Judicial review here should be supplied to protect the courts' integrity.
Yes, Virginia, they still have some.
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* Some evidence is out, apparently horrible to bear, that sexual abuse is also involved. And, not just the fake pics that were on the web a year or two ago. To be blunt, the detainee thing is impeachable. Don't care if those currently in control will not bring forth the proceedings. Simple truths are not always something people are willing to face.