I think that Frank is absolutely right in casting some doubt on the notion of an "independent judiciary" if by that we mean a judiciary that is truly insulted from political forces. That being said, I'm assuming that the constitution's drafters, either here or in Iraq, believe that neither president nor congress should entirely be trusted with the job of selecting judges, thus the separate processes of nomination and confirmation. (And I assume that even judicial realists distinguish appointees to the executive branch, who are presumed to wish to implement the president's agenda, with firing usually being available as a disciplinary measure, from appointees to the judiciary, who may indeed share the agenda but are presumed, say, to have something on their mind beyond helping the incumbent win re-election.)
As for Eugene's point: Yes, the Nguyen decision was, as a formal matter statutory, but doesn't the rejection of the harmlelss error argument have quasi-constitutional overtones, given its invocation of the centrality of an independent, i.e., life-tenured, judiciary? Or is this an episode in completely mindless textualism a la the Locke case of some years ago on "prior to December 31"? sandy
