Well, it's not yet completely clear that the Constitution forbids
article IV judges from sitting by designation in article III cases (the
Nguyen decision, I believe, was statutory); but if it does forbid this,
perhaps the answer is simply that the Framers saw some values -- such as the
need to promptly fill temporary vacancies -- as overcoming the lifetime
tenure principle, at least when the appointment is fairly brief.
As to the Vice-President point, Sandy is pointing to something that
might be fairly called an absurdity, especially given the longstanding
principle that no-one may be a judge in his own case. That the text and
tradition is to be set aside occasionally in cases of absurdities doesn't
mean that it should be set aside also in cases where one just thinks that
the outcome isn't very sensible, or is in some tension with some other
principles.
Eugene
> -----Original Message-----
> From: Levinson [mailto:[EMAIL PROTECTED]
> Sent: Saturday, June 14, 2003 2:46 PM
> To: [EMAIL PROTECTED]
> Subject: Re: More on recess appointments
>
>
> 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
> >
>
