Brett Bellmore Suggests a Fifth Scenario
Brett Bellmore wrote regarding recess appointments:
It strikes me that there's a fifth scenario, which you strangely omitted: Realizing that the problem is actually with a minority refusing to permit floor votes, not a majority, it is agreed that the President, of whatever party, will be entitled to an up/down floor vote on all his nominees within some fixed period of time. (By analogy to the way Presidential vetos are treated.) Since neither party trusts the other to voluntarily fulfil such a bargain, this bargain is sealed in the form of a constitutional amendment, giving the Senate 60 days from the time a nomination is made, to either hold an up/down vote, or see the nominee confirmed by default. At the same time, the recess clause is amended so as to clearly not apply to judges. A new ballance is struck.
This could work, because both parties aspire to elect Presidents, and see the problem with a continued deadlock of appointments. Granted, some members of the Senate would prefer that the minority retain the power to block appointments, but presumably at least some of the current filibuster clique would be willing to give up this power, given the assurance that Republicans could no longer wield it against Democrats, either.
The moral of our story? Sometimes problems with the Constitution should be fixed by actually changing the words. A tradition that's fallen out of favor in this age of the "living" Constitution, but which might profitably be revived.
posted by Lawrence Solum 1:04 PM
Dylan Ramsey on Judicial Independence and Recess Appointments
I recieved this thoughtful emial from Dylan Ramsey, a law student at Virginia:
I wonder whether there is a possible distinction to be made between the terms independent and apolitical as applied to the judiciary. Obviously, an independent judiciary that can carry out its work free from the influence of the political branches is a desirable ideal. But does that necessarily mean that the judiciary's work should be uncolored by the political viewpoints of individual judges?
I think one of the primary functions of the judicial branch has to be moderating the transition of one group from minority opposition to majority control. Historically, parties that control all of the political branches tend to lose big when things go wrong. In this sense, a majority can appoint judges to act as a check on radical change being crammed down their throat once they lose political power (with appointees being more politically moderate when the parties split control of the political branches). This check is a good thing unless you believe that the path of governance should follow the whims of public opinion, unchecked by the restraint of judges whose opinions differ from those held by the majority. Of course, judges must operate within the confines of the Constitution and stare decisis, so they cannot act in a completely counter-majoritarian way or make positive law (again, an ideal more than a reality). But they can smooth out the transition over time.
The use of the filibuster brings this cycle to a halt by allowing a minority party to block appointments, biding its time until the political landscape changes in their favor. Perhaps the more relevant question is the constitutionality of the filibuster (at least as applied to judicial appointments) and less the use of the temporary fix of the recess apointments power.
posted by Lawrence Solum 1:02 PM
Schwartz and Scott's Asymmetrical Information Argument
This post is really a foonote to the Legal Theory Blog post on Schwartz and Scott. Here is a quote that explains the argument in Legal Theory Blog:
the state cannot help when asymmetric information prevents parties from writing the efficient contract. Parties thus would reject default standards that permitted the seller to obtain “a commercially reasonable price in proportion to its cost of production”, or that permitted the buyer to recover “damages in proportion to commercially reasonable reliance investments made in good faith.” Under the first proposed standard, the seller always would claim to have high costs; while under the latter proposed standard, the buyer always would claim that all its investments were commercially reasonable and were made in good faith. As another example, the UCC provides in §2-715 that a seller must either perform or pay the buyer consequential damages measured by the difference between the contract price and the value of the goods to the buyer.124 This requirement is superficially efficient because it induces the seller to perform when performance would increase value and to breach otherwise. Valuations, however, often are difficult to verify. As a consequence, buyers have an incentive to overstate their valuations, thereby inducing sellers to perform even when the option of breaching and paying true damages would be less costly.125 Commercial parties respond to this problem by routinely contracting out of §2-715. In place of the law, parties create complex repair and replacement provisions that strive for efficiency in other ways.126 An appreciation of the information problems parties confront compels this conclusion: A good default does for parties what parties would have done for themselves had their contracting costs been lower. When asymmetric information prevents parties from writing certain types of contracts (even when their contracting costs are zero), a state-supplied default serves no purpose.
posted by Lawrence Solum 4:27 PM