Sandy asks: "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?)"
I think I might so authorize recess appointments, though I would be inclined to leave the issue open in a constitutional text and see how it plays out. First, I would argue that the "independent judiciary" is a misleading concept. Our courts have never had a pristine independence and have always been subject to some influence, direct and indirect. And I think much of the judicial independence we have lies in a generalized respect for an independent judiciary by the political branches rather than in constitutional text. Second, I would argue that the Constitution should be interpreted to permit a measure of accommodation among the branches, rather than creating rigid rules. Recess judicial appointments seem like something to countervail the Senate filibuster. Both are exceptions to the norm and tend to be used only when the institution both cares deeply about a candidate and thinks that it has sufficient democratic support to sustain its position politically. Ultimately, though, I would want to see empirical evidence, which would be readily available. It would not be too difficult to examine the actions of recess appointments and see if they seem unusually deferential to Senate preferences or see if their votes change upon receiving life tenure. Frank Cross Herbert D. Kelleher Centennial Professor of Business Law CBA 5.202 University of Texas at Austin Austin, TX 78712
