Well, I think it would be a bad thing if any decision that a judge appointed for a recess appointment made were open to collateral attack on the ground that the appointment was invalid. The prospects for mischief and uncertainty there seem great, if not as great as in Charles Black's impeachment example, which I was, of course, incorporating by reference in my earlier message.
As for the Second Amendment point, well, Sandy's point seems to have been cut off so perhaps there's more to it than I'm seeing. But I don't really think Sandy's arguing for a hard-and-fast version of stare decisis, which seems rather out of character. Nor was I making such an argument, which seems to me to be obvious from my previous post, so I must be missing something here. > 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 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 sandy -- Professor of Law University of Tennessee 1505 W. Cumberland Ave. Knoxville, TN 37996-1810 865.974.6744
