I take it that the interesting point about history settling the constitutional quesiton with recess appointments is not a matter of stare decisis, but instead concerns historical practice by the President and Congress. I drafted Judge Norris's dissenting opinion in the en banc rehearing of Woodley, and it has always seemed to me that the historical practice argument is the key to the question.
I've written short blog essay on this, which can be found at: http://lsolum.blogspot.com/2003_04_01_lsolum_archive.html#200219683 Lawrence Solum Quoting Glenn Reynolds <[EMAIL PROTECTED]>: > 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 >
