A LOT OF PEOPLE have emailed to ask what I think of President Bush’s “recess appointment” of Charles Pickering to the Court of Appeals. I feel that I have something of a conflict of interest here– I don’t want to be a federal judge, particularly, as it’s really not as good a job as being a law professor, but as I was discussing with some other professors at the AALS a couple of weeks ago, it might be fun to be a federal judge for a little while. (“It’s the best of both worlds,” said someone else. “You get to be a judge, and then go back to being a law professor before the endless drug cases and Social Security disability appeals get too tiresome.”) Then again, there’s probably no conceivable Administration that would appoint me to the bench, even on a short-term basis. I’m just politically incorrect from too many angles at once.

That said, it’s unfortunate that things have come to this pass. Recess appointments to the bench are nothing new, but this one is clearly another step in the ongoing breakdown of civility in government. For more on that, you might want to read Brannon P. Denning, The “Blue Slip”: Enforcing The Norms of the Judicial Confirmation Process, 10 WM. & MARY BILL OF RTS. J. 75 (Dec. 2001). Sadly, it’s not available on the Web, but for a related piece dealing with similar issues in the context of Executive branch appointments, you might want to read this article, Article II, the Vacancies Act, and the Appointment of “Acting” Executive Branch Officials, 76 WASH. U. L.Q. 1039 (1998), also by Brannon Denning. I suspect, though, that we’re in the midst of a political realignment, and that those “norms of civility” hold mostly during periods of relative stability. You can read a piece that I wrote about this a while back, in the Southern California Law Review, here. I don’t know if the approach I suggested would work today, though, as it was aimed at a divided-government situation, not one in which filibusters are the main weapon — which only goes to show how rapidly things are changing.

Larry Solum has more here, and David Bernstein opines that this was a bad choice: “Pickering was among the worst of the Bush judicial nominees.”

UPDATE: Professor Bainbridge writes: “There’s no way on God’s green earth that I would expose myself to jerks like Leahy and Schumer in a confirmation fight, but I think it would be a blast to spend a year or two sabbatical on the 9th Circuit.”

Yeah. Though I think I could out-jerk even Leahy and Schumer if I really tried. Perhaps the Bush Administration should send some Kamikaze appointments who don’t really want the job but who’ll dole out Kingsfieldian humiliation: Senator, that question exposes such monumental ignorance that it stands as a humiliating rebuke to the constituents who voted you into office. Pardon me while I Fisk it. . . . Followed by a pop quiz on the Constitution!

But who out there would be suited for such a role?

UPDATE: Here’s an effort at imagining an opinion by Mr. Justice Reynolds. You’d better read it, because it’s as close as any of us will ever get to that. . . .

IS IT GOOD FOR THE BLOGGERS? Reading David Bernstein’s various posts about Jews in American politics (which, unlike some bloggers, I found quite interesting), I had a thought. Jews are influential beyond their numbers in American politics — they’re about 2% of the electorate, but they’re far more influential than that. Why?

Well, they’re on average better-educated, wealthier, and more interested (and involved) in politics than the average voter. To me, this sounds like blog readers, who are probably similar in numbers, and in other characteristics. Will the blogosphere become a demographic of similar importance? Maybe it already is.

PHIL BOWERMASTER explains that death sucks.

STILL MORE CRUSHING OF DISSENT: I blame John Ashcroft. Again.

IF YOU’RE IN SOUTHERN CALIFORNIA, the 1st Marine Division would like your help. They need volunteers to help pack up donated toys, relief supplies, etc., that they’re taking with them to Iraq. Follow the link for more information.

THE BELMONT CLUB is worried about the price of less-than-total victory.

ANOTHER BLOGOSPHERE MARRIAGE: Could this be a trend? Does this mean the Blogosphere qualifies for some of that marriage promotion money?

I CAN’T REACH ANDREW SULLIVAN’S BLOG but I had put it down to the usual web gremlins. Several readers, though, say that Andrewsullivan.com actually takes them to another site entirely and speculate that his domain has been jacked. I don’t know, but if I find out any more, I’ll post it.

UPDATE: The link above still gets me a “cannot find” page — but other people are reporting that it takes them to the wrong site. Some sort of DNS issue, I’d imagine.

ANOTHER UPDATE: Andrew emails that it’s nothing nefarious: “our server has melted down.” He reports that they’re trying to get it back up.

ROGER SIMON CHALLENGES JOSH MARSHALL: “Anyone who believes Clark is an honest anti-war candidate had better have an answer to this.”

UPDATE: Philosoraptor says that Roger is misreading Clark: “Had I read the op-ed quickly without knowing anything about Clark, I might very well have concluded that he was expressing qualified support for the war. However even a passably careful reading of the thing reveals that it fails to provide significant evidence that Clark supported the war.” Hmm. For a plain-spoken ex-General, that Clark guy sure is hard to pin down.

IOWA POLITICAL BLOGGER DAVID HOGBERG has some observations on Dean’s slippage.

UPDATE: More on this topic here.

IN THE MAIL: Randy Barnett’s new book, Restoring the Lost Constitution: The Presumption of Liberty, showed up yesterday (I had ordered it when I mentioned it last week). Based on a very quick look, it seems quite good. I look forward to reading it more thoroughly when I finish the article I’m writing now, and get past the Appointments season. Sigh.

ED CONE has signed on with BlogAds. I haven’t done a survey, but it seems as if BlogAds has more penetration on the lefty side of the blogosphere. If so, I wonder why?

UPDATE: Henry Copeland emails: “God knows I’ve tried to get more centrists, libertarians and Republicans aboard. :)”

Hmm. I guess for non-lefties it’s all about the love, not the money! Actually, Henry’s been after me to join blogads for quite a while. I’m not sure why I’ve been slow to do it, actually. I just have been.

HOWARD KURTZ: “Why, after a year of more or less being dismissed by the media, is John Edwards getting such good press?”

The answer: Anger is out, and “nice is in.”

AL GORE’S SPEECH ON GLOBAL WARMING got a rather cool response, not least because of the unfortunate weather when he delivered it, producing headlines like this one: “GORE TALKS GLOBAL WARMING WHILE CITY SHIVERS.”

Of course, a cold day in January is no more proof that global warming theories are bunk than a hot day in July is proof that they’re correct. But I do wonder why the Clinton Administration didn’t try harder — which is to say, at all — to get Kyoto ratified, if things are as urgent as Gore is saying now.

JOHN ROSENBERG points to more problems for Wesley Clark: When is a litmus test not a litmus test?

Clark isn’t the first politician to have this problem, of course, but this sort of thing makes it kind of hard for him to position himself as anything other than a typical politician.

CHARLES KRAUTHAMMER has an interesting column on Bush’s Mars proposal, and says the critics haven’t been paying attention:

As for the Kennedy stuff, the Bush proposal has less to do with a vision of man’s destiny than with a totally dysfunctional government agency. NASA gave us the glory of Apollo, then spent the next three decades twirling around in space in low Earth orbit studying zero-G nausea.

It’s crazy, and it might have gone on forever had it not been for the Columbia tragedy. Columbia made painfully clear what some of us have been saying for years: It is not only pointless to continue orbiting endlessly around the Earth; it is ridiculously expensive and indefensibly risky.

The president’s proposal is a reasonable, measured reconfiguration of the manned space program. True, he could not go all the way. Binding agreements with other countries made it impossible for him to scrap the space station — a financial sinkhole whose only purpose is its own existence. But he is for phasing it down and for retiring the shuttle within six years.

That frees up huge amounts of NASA money to do what is useful and exciting: going to other worlds. For this generation, the only alternative to wandering about in low Earth orbit — other than the Luddite alternative of giving up manned flight completely — is to return to the moon. And this time, stay there.

Read the whole thing.

UPDATE: Ken Silber says that those who charge Bush with financial fecklessness here have it backwards:

In its financial aspects, the Bush plan also is pragmatic — indeed, too much so. The president’s proposal would increase NASA’s budget very modestly in the near term, pushing more expensive tasks into the future. This approach may avoid an immediate political backlash. But it also limits the prospects for near-term technological progress. Moreover, it gives little assurance that the moon-Mars program will survive the longer haul, amid changing administrations, economic fluctuations, and competition from voracious entitlement programs.

Something more visionary is needed. Getting to the moon and Mars will require innovation on the financial side as well as in space hardware.

He has an interesting suggestion.

A MARRIAGE MADE IN THE BLOGOSPHERE:

It all started with blogging. In a sense, it started around March or April, when I was still new and Deb first noticed and was intrigued by me. I first noticed her blog sometime after she moved to Blogmosis, as far as I can recall. The big thing I remember is she went straight from new discovery to one of my favorites immediately. Before long (on July 6, to be exact), I read her About page and commented that, alas, I was too old for her. She replied that she should have said “likes older men” there, which made me go “hmmmmm…”

Well, Chris “Spoons” Kanis got married via blog, and a few people have gotten blog-related dates (probably more than a few, actually). Cool.

DAVE WINER:

There’s been talk around the blogs about systematically tracking reporters, assigning a blogger to analyze the reporting of a specific professional journalist. I don’t think this is a very good idea.

It would be much better to track the candidates by issues, rather than watching reporters.

What you’ll find out when you track reporters is that they aren’t doing their job. This has very limited value.

Fortunately, the blogosphere is big enough to accommodate both approaches at once.

PROFESSOR BAINBRIDGE: “If Kerry thinks smoking pot is no big deal, he ought to come out for legalization. If Kerry thinks it is a big deal, as his website claims, he shouldn’t be joking about it.”

UPDATE: More on this topic here and here.

LT SMASH: “Howard Dean’s opposition to the war in Iraq is morally inconsistent with his explicit support for unilateral action in Bosnia.”

JAMES MILLER thinks that Ralph Nader should run.

IT’S PLEDGE WEEK over at Backcountry Conservative — a South Carolina politics site that you’ll want to start visiting as he ramps up coverage of the South Carolina primary, which everyone will suddenly remember in a week or two.

HMM:

AMSTERDAM, Netherlands — A recycling company found uranium oxide — a radioactive material also known as yellowcake — in a shipment of scrap steel it believes originally came from Iraq, the company said Thursday.

It’s kind of hard to come up with an innocent explanation for that.

I’M A BRAND! “Branding” used to be the big Web buzzphrase. I just got my copy of Lee Harris’s nearly-out book, Civilization and its Enemies, which I blurbed, and the blurb is signed “InstaPundit.com.” Not “Glenn Reynolds,” or “Glenn Reynolds, InstaPundit.com.” Just “InstaPundit.com.”

I don’t mind that, it just seems kind of, er, odd. I guess that somebody at the publisher thinks that InstaPundit will sell more books than Glenn Reynolds. So I’m branded, now, I guess. Too bad it’s not 1999 — I’d be ready for the IPO!

BILLY BECK NOTICES that Wesley Clark is claiming he wasn’t relieved of his command in the Balkans. The problem with that claim is that, well, he was. I think that the quote that Beck points to is a distillation of this kind of unconvincing spin, from Hardball:

MATTHEWS: Did Bill Clinton agree in your policy?

CLARK: Absolutely.

MATTHEWS: Why did he relieve you?

CLARK: First of all, I wasn’t relieved.

MATTHEWS: You weren’t?

CLARK: No. Uh-uh.

MATTHEWS: You weren’t relieved as supreme commander as NATO.

CLARK: No, I wasn’t. No. I was asked to retire three months early.

MATTHEWS: How is that different?. . . .

CLARK: If you relieve someone, you take them out of command. What happened here was, I was asked to retire early and then it was then leaked to “The Washington Post” in an effort to keep me from talking to Bill Clinton about it. So this was a behind the back power play. Bill Clinton told me himself he had nothing to do with it, And I believe him.

Matthews isn’t convinced by this story, and neither am I. And I’d very much like to hear the whole story behind Clark’s departure.

UPDATE: Reader Robin Burk emails:

Clark is technically correct (if I remember correctly) in saying he was not relieved of his NATO command. Relieving a commander is a major step that occurs with a formal declaration by superiors and transfer of command authority without the necessity for consent from that commander. It is a very public rebuke. My understanding is that Clark was urged to retire so that they would not need to take the drastic step of formally relieving him.

Hmm. I see the point, though Clark’s angle still seems like spinning to me. Meanwhile, the not-exactly-impartial Ann Coulter offers this as the reason for Clark’s, er, disemployment:

Clark’s forces bombed a civilian convoy by mistake, killing more than 70 ethnic Albanians, and then Clark openly lied about it to the press. First he denied NATO had done it, and when forced to retract that, Clark pinned the blame on an innocent U.S. pilot. As New York Newsday reported on April 18, 1999: “American officials, speaking on condition of anonymity, said the staff of Army Gen. Wesley Clark, the NATO commander, pointed to an innocent F-16 Falcon pilot who was castigated by the media for blasting a refugee convoy.” Eventually, even a model of probity like Bill Clinton was shocked by Clark’s mendacity and fired him.

If this is the reason for Clark’s “early retirement,” it’s news to me.

UPDATE: Phil Carter has a lengthy post on what it means to be “relieved of command.” Here’s the short version, from his email to me:

Bottom line: I don’t think he was technically relieved, but I think it’s easy to see how someone would casually use that word to describe his situation. Relief is a term of art in the Army, and it carries specific administrative and legal meaning. Clark wasn’t relieved in that sense, but he may have been relieved/fired/terminated in the civilian sense of those words.

I’ll defer to Phil’s superior knowledge, though it’s made more confusing by the fact that Admiral Quigley refers to Clark as being “relieved” twice in this press conference quoted by Billy Beck above. So does this article (also quoted by Beck) from the Command and General Staff College of the Army, which refers to Clark as having been “initially shocked to find himself relieved and retired.” So it’s not just us civilians who are using the term loosely, if that’s what’s going on. Compare that with James Ridgway’s report (which formed the original basis for Beck’s post) that “Clark said he wasn’t relieved, but in the interests of helping the Kosovo people, he quit his job as supreme NATO commander.”

MORE: In response to an email from Mark Kleiman, I want to be clear: I think that Clark is spinning. He’s trying to say that he wasn’t “relieved” (maybe, technically, true in terms of a narrow military meaning of the word) while implying that he wasn’t given the boot, which he pretty clearly was. In fact, in the Ridgeway quote — though it’s an indirect quote, which is why I also quoted the Hardball bit above — he seems to suggest that it was all a generous act on his part.

That’s rather implausible, to put it mildly. People don’t generally get asked to retire early because they’re doing a great job. I don’t necessarily endorse Ann Coulter’s version above, as I thought I made clear, but Clark did something that got him booted, and I’m still not clear on what. It seems to me that we ought to be clear on it, since he’s running for President.