Sandy raises 2 good points that I'd like to comment on: 1. The Article IV judge vs. recess appointment anomaly.
I think that there is at least some anomaly here. However, there may be a distinction between the the recess appointment and the Article IV judge in that the former is intended to be an Article III judge by the head of at least one of the responsible branches of government (here, the president), while the Article IV judge has no such support. This doesn't mean that allowing recess appointees to sit on panels is completely unproblematic (the possibility of political pressure that Sandy raises is, I think, a real problem), but it does suggest a possible distinction between the Article IV case and that of the recess appointment. And, as others have mentioned, the fact that the Constitution provides for temporary recess appointments but not for allowing Article IV judges to sit on panels may well mean that the Supreme Court has to tolerate the problems raised by the former even if it chooses to crack down on the latter. 2. The VP presiding over his own impeachment trial I agree with Paulsen that this is a real weakness in the Constitution. However, I don't think it makes that much difference in practice. If the impeachment of a VP ever occurred, he would face tremendous political pressure not to preside over the trial. The one VP who did come close to impeachment (Spiro Agnew) certainly was not saved by the prospect of being able to preside over his own trial. He was forced to resign. On Sat, 14 Jun 2003, Levinson wrote: > 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 > > >
