I agree with Eugene's point; this seems one of those subjects, like impeachment, where you don't want a split decision. I must confess, though, that I have a conflict of interest: I'd like a recess appointment, myself. I don't really want to be a judge for life, but I think it would be fun for a while. Of course, rendering that conflict insignificant is the indisputable fact that no administration of either party is likely to appoint me to anything. . . .
> 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 -- Professor of Law University of Tennessee 1505 W. Cumberland Ave. Knoxville, TN 37996-1810 865.974.6744
