Law professor Randy Barnett offers a strategy for combatting the Senate Democrats’ successful efforts to prevent the Senate from confirming President Bush’s conservative judicial nominees. The strategy, which has also been proposed by our hero Hugh Hewitt, is to use the power to make “recess-appointments.” Through this power, the president can fill vacancies on the bench until the end of the congressional session. Although the appointment is temporary, the judges can participate fully in opinion writing while they are on a given court, and thus can make a big difference. If necessary, new recess-appointments can be made next year.
Barnett is aware that the most promising candidates for judgeships will not want to take a recess-appointment because it confers a second-class status, and may make them unconfirmable in the future. However, he notes that there is a core of ideological conservatives and libertarians who, for various reasons, do not aspire to become permanent judges. Moreover, the mere (credible) threat to fill existing vacancies with a more conservative group of individuals than those President Bush has nominated might well break the log-jam in the Senate.
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