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Sandy Levinson discusses another way in which the presidency has a good deal of market power in the appointment process (link)

 If one tries to be at least somewhat fair to Sen. Schumer, though, one might look at one justification that he offered, his fears that George W. Bush would simply name someone far worse–and one can easily think of people who are worse that Mukasey–to a recess appointment. This would, of course, completely eliminate any role of the Senate in deciding who serves as the country’s highest legal officer within the Executive Branch. This is a realistic fear, but, of course, it’s a fear that arises only because we have a Constitution that includes the recess appointment power.

The recess appointment power gives the presidency another way to reduce the importance of the Senate in the appointment process.

A commenter notes that the constitutional clause that allows recess appointments has been interpreted quite broadly

The plain language of the Constitution is that recess appointments may be made to fill vacancies “that may happen during the Recess of the Senate”. In other words, recess appointments are available when an office becomes vacant while the Senate is in recess. If an office becomes vacant while the Senate is in session, the President has no power to make an appointment merely because he fails to obtain the consent of the Senate to his nominee.

I am aware that there is a legal literature on both sides of this question, but I find the prevailing opinion incomprehensible.

This type of interpretation is probably a result of the fact the presidency has so much market power in appointing Supreme Court Judges sympathetic to executive power.

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Hanah Volokh discusses the way that statutory qualifications can violate the separation of powers:

Both of the two appointments procedures are set up on a straightforward separation of powers principle: I’ll cut the cake, and you choose which piece you want. That is, Congress creates the office, but someone else gets to choose who fills it.

[…]

This leaves us with an important line-drawing question. Just what counts as “creating the office,” and what counts as “hiring someone to fill it”? The gray area here is job qualifications.

Clearly if congress said “the office will be filled by Harry Reid” when creating a new executive office, that would violate the separation of power, but surely Congress should have some authority to create limits to help prevent cronyism, corruption etc., so there is a need for a balance.

What Ms. Volokh has not mentioned yet is that the constitution has a good structural mechanism for creating a good balance in the Supreme Court. The legislative branch and the executive branch jointly appoint Supreme Court judges, and as a result, those judges represent the interests of both the legislative branch and the executive branch (though biased towards interests of the executive branch). Perhaps it would be better then if the Supreme Court did not consider constitutional questions when reviewing this issue, but instead made a judgment call based on ‘reasonableness’. The Supreme Court does not have any incentives to favor either branch or too much interest bias toward either branch, so it is in a good position to decide which statutory qualifications for executive branch offices are appropriate and which are not.


I rarely cheer for either political party, but the Democrats are calling for a ‘consensus candidate’ and threatening to block Bush’s nomination if it is Ted Olson, who would be a very political nomination. I strongly support the nomination of consensus candidates over political ones, so: Go Democrats!

Democrats, including current Judiciary Committee Chairman Patrick Leahy, indicated they would mount strong challenges to Olson if Bush nominates him. “He is certainly not a consensus nominee,” said Sen. Chuck Schumer, D-N.Y. “He has a very political background.”

Later in the article:

If Democrats delay the nomination, [Republican Senate leader] McConnell warned, “they’ll show the American people that their concern for the department was insincere.”

It takes some serious chutzpa to attack the Democrats for showing concern about the independence and centrism of the justice department.

I can’t be the only one who thinks that the position of Attorney General, or any appointment, should not be a political appointment. There are many people that would be acceptable to almost everyone, and the president should nominate one of these candidates.