Editore"s Note
Tilting at Windmills

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March 27, 2004
By: Kevin Drum

RECESS APPOINTMENTS....Speaking of judicial appointments....

I wonder what the strict constructionist folks think about Bush's recess appointments of those two judges recently? On one side, the text of the constitution is quite clear: "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate..." So no problem.

On the other hand, the intent of that clause is also quite clear: the framers orginally thought that Congress would meet infrequently, and the president needed the recess appointment power to keep important posts filled while waiting for Congress to return. Today, with Congress rarely out of session for more than a few weeks, that's no longer an issue.

So the text of the constitution is pretty clear, but at the same time the intent behind that text is also pretty clear and 180 degrees contradictory. What's the right opinion for a dedicated strict constructionist?

POSTSCRIPT: And as long as we're musing about such things, the recess appointment flap is a result of Democrats filibustering Bush's nominees, which is another pretty remarkable constitutional oversight. Did you know that the constitution nowhere says that Congress has to pass laws by majority rule? As near as I can tell, they could decide that all laws need 80% approval and all congressmen whose names begin with "K" get a double vote if they felt like it.

Kevin Drum 3:24 PM Permalink | Trackbacks

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