I agree that Chris's reading of Article II may be more "plausible" than mine (with regard to recess appointment of a vice president), but I take it that the more important point is that one doesn't get there by any notion of "bare-bones textualism," but, rather, through a process of interpretation that, to be sure, begins with the text but, most certainly, doesn't stop there. (And, given that I believe every word that I wrote about the unconstitutionality and stupidity of the Succession in Office in Act, I'm not at all sure that my reading isn't more "plausible" once one throws in a dose of prudential analysis.)
Isn't it spectacularly likely, incidentally, that no one drafting the Constitution give a nano-second of thought to the possibility of recess appointments to the federal judiciary? Is this relevant (assuming it is true)? Assume that you are asked to advise Iraq on drafting its new constitution (or, for that matter, the European Union), and you suggest some kind of separated powers a la Americaine, including recess appointments for members of the Executive Branch. Would anyone on this list say that the president should also be able to make recess appointments to an "independent judiciary" protected against capture by either president or senate? (Is your answer at all relevant to deciding how best to interpret the Constitution that we have?) sandy
