Article II gives the President the power to "fill all Vacancies" when the Senate is in recess. I am suggesting that this be read as referring to vacancies in the Executive Branch, period. Thus no judicial recess appointments. Others believe that "all" means "ALL." Fair enough, but now consider a "vacancy" in the office of the Vice presidency (a not unknown phenomenon). Why doesn't the President, even prior to the 25th amendment, simply get to fill "that vacancy"? I presume that the answer lies in the fact that the Senate plays no role in choosing vice presidents (prior to the 25th amendment). But now let's factor in the 25th Amendment, in which both the House and Senate have a role.
Assume that something happens to the vice president (either Gore or Cheney: I don't intend to make a partisan point). I believe, with Akhil Amar, that the Succession in Office Act is unconstitutional; perhaps more to the point, I agree with Norman Ornstein that it is a monstrous stupidity in its potential mischief for the smooth operation of the US government. In any case, assume that the demise of the VP happens just after Congress has adjourned. The President could (absolutely sensibly) believe that the US can't afford to be without a VP until Congress returns to Washington and revs up the confirmation machinery, not least because, say, the Speaker of the House, who would unconstitutionally succeed to the White House if something happened to the President, is also a member of the opposite party (Gingrich, Tip O'Neill during the Reagan era) or has no ascertainable qualities for which we look to in a Chief Executive (John MacCormack, Dennis Hastert, for starters). S! o why doesn't the "literalist" Article II argument give the President the right to make a recess appointment for VP. (To be sure, Section II of the 25th Amendment provides that the President shall nominate and both houses shall confirm the new vice president, but how does this *really* differ from the process by which people are supposed to become Article III judges?). sandy sandy
