Asymmetrical Information

An interesting argument by Larry Solum, to which we should add the following: As a practical matter, the President could not have made any additional recess appointments (even if there were candidates willing to accept such appointments). By definition, recess appointments can be made only when Congress is in recess. After President Clinton made a recess appointment of someone whose nomination had been rejected by the Senate (not just not voted on, but someone whose nomination was rejected by the Judiciary Committee), the Senate leadership made sure that the Senate was always in session from that time forward. This prevented the President from making any more recess appointments. Senate Democrats could have taken similar steps. So, what did President Bush give up? Exactly nothing.

Well, the Congress does usually (I think?) recess around Labor Day, but I think you make an excellent point.

From a practical point of view I think GWB got something for nothing; movement on 25 judicial nominees in return for a promise not to do something he was unlikely to do.

And despite Byron York's opinion that he didn't get what he really wants - movement on the other seven "controversial" judicial nominees - he ain't never going to get that anyway, so long as the Democrats have enough votes to uphold their filibuster.

So, agreed, a push.

What the analysis misses is the far more important matter of how this plays on the front page and in campaign adverts. Senate Dems bought themselves fairly ironclad immunization against the charge that they were unfairly holding up judicial appointments in return for a promise that Bush won't do an end run around their holding up judicial appointments in the future. Bush got... Well, 25 low level Federal Judges that Senate Dems didn't much care about in the first place and the knowledge that anyone Senate Dems don't like is going exactly no where.

Frankly I think Bush lost in this deal, bigtime.

Myria

Myria: that may be true, I don't know, but I would argue that few people pay very much attention to the whole process of nominating and approving judges. Not enough attention, at least, to sway their vote one way or the other.

If he lost I think it is because he captitulated on the larger, question of priciple: separation of powers, the right of the President to nominate who he sees fit, and the obligation of the Senate to "advise and consent". In that context he has negotiated away his right to appoint judges (in recess or otherwise) in return for the Senate's agreement to do what it must constitutionally do.

In that case he lost big - although I guess he did put a time limit on the recess appointment moratorium.

I agree with Jane on the appointment of judges issue.

At this stage in the President's term, such an direct appointment would be short-lived indeed and not likely to be confirmed in the Democrats' current state of mind. It would be a great financial and career sacrifice to anyone worth appointing. You wouldn't want the person who would do it out of vanity.

Oh, and yesterday, I'm sure something happened. Maybe a lawyer got lucky somewhere and was retained at an hourly rate plus disbursements with a large successful performance bonus by some rich little old lady who wants to marry her cat so it can inherit her estate tax free. It would be even luckier if this happened in Massachusetts.

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