Everything that Eugene says below makes perfectly good sense, but how does he explain
the fact that it is apparently impermissible per se (i.e., no harmless error rule
apples) if one's appeal is heard by an Article IV judge, whose sole formal difference
from his Article III counterpart is lack of life tenure, but, under his analysis,
perfectly all right to have the conviction upheld by a panel that includes a recess
appointee who may well, in the current heated atmosphere, be wary of antagonizing
members of the Senate Judiciary Committee who will decide whether (s)he gets the job
for life.
Incidentally, I'm wondering if Eugene agrees with Mike Paulsen that the
Vice-President, as President of the Senate, would preside in an impeachment trial in
the Senate considering the impeachment of the Vice-President. That's what the text
clearly seems to suggest, since the only time the VP is not the presiding officer is
during impeachments of the president. Mike believes this is an arrant
"constitutional stupidity," but there's nothing that can be done about it (except,
presumably, appeal to the honor of the VP). So perhaps we should appeal to the honor
of recess appointees not in fact to sit on any panels until their confirmed!?
sandy
-----Original Message-----
From: "Volokh, Eugene" <[EMAIL PROTECTED]>
To: [EMAIL PROTECTED]
Date: Sat, 14 Jun 2003 13:28:48 -0700
Subject: Re: More on recess appointments
I certainly agree with Sandy's descriptive claim that the Court is
"capable of deciding that Article II doesn't control" here. But that's a
separate question from the normative claim of whether the Court should so
decide. That the Court may have decided the sovereign immunity cases in a
way that's inconsistent with the text and the original meaning (if that is
indeed so) doesn't mean that the Court ought to likewise set aside the text
and the original meaning in this instance (and I know of no evidence that
the text and the original meaning differ here).
Moreover, as I understand the state sovereign immunity cases -- and
I hasten to say that I'm not an expert on the history of the subject -- they
are at least supported by a pretty long line of precedent going back to Hans
v. Louisiana and in some measure before, and there is at least some
contemporaneous evidence (for instance, a statement in the Federalist) that
state sovereign immunity was meant to be preserved by the Constitution.
That original meaning or traditional understanding may sometimes trump text
is one thing; it doesn't follow, it seems to me, that pretty general
structure should trump a pretty specific text and traditional understanding.
It seems to me that this is especially so with regard to questions
such as who appoints high government officials, even temporary ones. This
seems to me to be the sort of question for which it's especially important
to have a pretty definite answer. The text provides a fairly definite
answer; the history cements it; it seems to me that we should stick with
that, despite the plausible structural arguments against it.
Recall, incidentally, that there's a plausible structural argument
in favor of temporary appointments, too -- judicial vacancies can cause a
pretty serious interference with federal business, and would have caused
even more in the early Republic, where having judges from neighboring courts
sit by designation would have been much more difficult.
Eugene
> -----Original Message-----
> From: Levinson [mailto:[EMAIL PROTECTED]
> Sent: Saturday, June 14, 2003 11:58 AM
> To: [EMAIL PROTECTED]
> Subject: Re: More on recess appointments
>
>
> 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
>
