Glenn Reynolds writes: I agree with Eugene's point; this seems one of those subjects, like impeachment, where you don't want a split decision. *****************************
Mark Graber wrote a fascinating essay for a symposium earlier this year at UT on what accounts for "settlement" in constitutional issue, and he contrasted those issues that must be settled correctly (and thus are open to endless relitigation, at least in theory) and those issues that must be settled, period. (The example was the annexation of Texas, which many first-rate constitutional lawyers of the time believed was unconstitutional but became "settled" almost literally the day after Congress, albeit unconstitutionally, admitted Texas to the Union.) Whatever one thinks of Bush v. Gore (I still despise the decision), it is "settled" that George W. Bush is in fact President. No one seriously suggests relitigating Bush v. Gore. Impeachment also is an issue that begs for settlement, period, rather than "correct" resolution. But what is it about recess appointments to the judiciary that demands that the precedents be accepted as the final word? What accounts for this issue "seeming" so to Glenn. That isn't his position, say, on the meaning of the Second Amendment, which had pretty much been treated as settled by Miller and its aftermath, where every judge from, say, 1940-1990 read Miller as saying that the feds could do whatever they wanted with regard to guns. (That that may be a misinterpretation of Miller is beside the point, if "settlement" is a high value.) He's been one of the leaders in trying to "unsettle" the conventional wisdom. So why is he so stodgy re recess appointments (besides the fact that he'd love one :)) ? sandy
