Sandy refers to appeals from decisions of appellate panels that include a recess appointee. That point is well-taken. However, such appeals will be difficult, since they will have to involve either request for en banc review or a petition for cert.
I don't know whether there have been recess appointments to the federal district courts -- this obviously would have a lower political profile. But if such an appointment is made then appellate review will be not be discretionary, and we could expect to see decisions on whether recess appointees may exercise the judicial power of the United States. Mark S. Scarberry Pepperdine Univ. School of Law -----Original Message----- From: Levinson To: [EMAIL PROTECTED] Sent: 6/9/2003 8:46 PM Subject: Re: More on recess appointments Note should be taken of a very interesting case that the Court decided today, Nguyen v. US. A majority consisting of Stevens (who wrote the opinion), Souter, Kennedy, Thomas, and O'Connor held that a ninth circuit panel was impropery composed because it included an Article IV judge, the district judge for the District of the North Marianas Islands. The majority says several times that the key to being a proper Article III judge, and thus eligible to serve by designation on a Circuit Court panel is tenure of office "during good behavior." The decision is statutorily based, but, obviously, the majority had to construe what it means to be a "real" federal judge who has the prerequisites to do things like sit by designation on Circuit Court panels. The four dissenters, Rehnquist (who wrote the opinion), Scalia, Ginsburg, and Breyer, agree that the panel was improperly constituted, but basically held that it was harmless error. So, let's return to a prior discussion of recess appointments. If it's true, as the majority suggests, that every judge of a circuit court panel must be an article III judge, then how in the world can a recess appointee be a legitimate part of such a panel, since, obviously, he/she is subject to what might be termed "non-confirmation" by a Senate upset with a decision that he/she might make. It is Article II that allows recess appointments; there's not a word in Article III that mentions them. So why not say this is just another example of bad constitutional drafting and that the proper understanding of Article III and its mandate of independent judges is that recess appontments are unconstitutional. This seems to be, if not entailed, then at least strongly implied by today's decision. Otherwise, it's just another example of statutory nit-picking (which, of course, it may be). At the very least, wouldn't it be malpractice, after today's decision, for a practicing lawyer (att'n Marty: I'm eager to hear your opinion) to fail to appeal any decision adverse to his/her client emanating from a panel that included a recess appointee? Isn't this at least a live issue that the Court now has a duty to clarify? sandy
