David Wagner writes: Recess appointees look anomalous from a constitution-maker's perspective, but the Constitution we actually have provides for them (Art. II. Sec. 2, paragraph 3). The reference here to "vacancies" presumably refers to the wide range of officers listed in paragraph 2. Is there a textual argument that paragraph 3 is inapplicable to Art. III judges?
I don't think there's a "textual" argument available, but so what? There's certainly a strong structural argument and now a strong precedential argument, especially if one takes last week's case seriously. There is no more reason to read the Article II text as "absolute" than there is, say, to read the First Amendment or the Contract as absolute, whatever their grammar (why doesn't "no law" mean "no law"?). A court capable of deciding the recent bunch of structural federalism/no federal jurisdiction cases, in the teeth of the language of the 11th amendment, is certainly capable of deciding that Article II doesn't control with regard to something so important as preserving judicial independence and the appearance of same. That recess appointments go way back shouldn't count for this court. After all, it had no trouble saying that the Chisholm v. Georgia court simply engaged in an obvious misunderstanding of the Constitution (whatever the text) in upholding diversity juri! sdiction, so that, presumably, the 11th amendment was wholly unncessary (except to reverse the court's inexplicably stupid decision). sandy
