An odd (but I'm not sure incorrect) pont just occurred to me. The Judicial Watch suit (and constitutional argument) is based on the "duty" of the Senate to fill judicial vacancies (or, at the least, to vote on presidential nominees). But, of course, there is no duty to have federal courts at all, other than the Supreme Court (though the fact that the Court has ranged from 5-10 members over its history suggests that there's nothing sacrosanct about the number nine). So if Congress could simply abolish the federal circuit courts (remember Stuart v. Laird?), why can't it adopt procedures that make it marginally harder to fill vacancies? Isn't this just another example of having to accept "the bitter with the sweet," an argument associated, of course, with members of the current majority, especially Rehnquist.
sandy
