An interesting tangent to the recess appointment discussion is the effect
this might have on any future confirmation hearings for Pickering or other
recess appointees .... Once they have heard cases as judges (or Justices)
in the Court of their appointment, they might well be able to duck a lot of
questions that would otherwise be more difficult to avoid.
This came to mind reading Lucas Powe's "The Warren Court and American
Politics" and his discussion of the Abe Fortas nomination to be Chief
Justice. Powe argues that Fortas broke with long-standing assumptions that
a sitting Justice would offer minimal testimony about the Court and its
cases on Separation of Powers grounds.
Though probably not relevant in this case, since Pickering is a sitting
federal judge and since he has already been through confirmation hearings
for the Circuit Court appointment ... BUT does this suggest an interesting
strategy for putting stealth candidates into a position to avoid answering
key questions?
Gordon Silverstein
Department of Political Science
The University of California, Berkeley
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