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. . . .