Balkinization

Bush Does End Run, Appoints Pickering To Fifth Circuit

The New York Times has the story.

Pickering was one of a handful of lower court nominees that the Democrats filibustered. In some ways, Bush's decision to appoint Pickering (on a Friday afternoon, in order to avoid substantial press coverage) is not a surprise. In the past Presidents have appointed a number of judges to recess appointments for various and sundry political reasons.

What are the reasons in this case? Recess appointments last until the next session of Congress begins, in this case, in January 2005. Bush may be hoping that he will will some seats in the Senate in the 2004 elections and that will allow him to break through the Senate fillibuster. He would have to pick up a lot of seats for this to happen, or else he would have to cow the Democrats so much that they simply give up their opposition. Nevertheless, even if Pickering is not appointed to a life tenured slot in 2005, Bush will have thrown red meat to his most conservative supporters, showing them that he is standing up to Ted Kennedy and the liberal Democrats.

Bush is well aware that the Democrats will criticize him for this, but at this point he does not care much, thinking that the Pickering nomination will go unnoticed by moderate voters while it will be noticed by social and religious conservatives.

In this sense, what Bush has done has a high payoff with comparatively little risk.

There is an ongoing and quite interesting academic debate about whether recess appointments of Article III judges should be constitutional. The argument is that Article III judges should be independent; that is why they are given life tenure. If Article III judges serve for only a year appointment until the Senate can confirm them they may be tempted to decide cases in ways that they believe that some Senators might like. This is a good structural argument against the practice. The argument on the other side is that the practice of recess appointments for Article III judges is farily well established and it has not led to a very significant degree of judicial corruption. I assume that as Pickering's appointment hits the blogosphere this debate will be renewed.

I don't have much of a problem with Bush appointing judges he believes in to recess appointments. Presidents should appoint the best people possible to the federal judiciary. My problem, rather, is that the fact that Bush believes so strongly in Pickering says something deeply troubling about Bush's politics.

Posted 4:04 PM by JB [link]