# Alito confirmation hearing **URL:** \ **Category:** Great Debates\ **Created:** [January 9, 2006, 6:25pm UTC](https://boards.straightdope.com/t/alito-confirmation-hearing/339187 "2006-01-09T18:25:50Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![AFAIKnow](https://avatars.discourse-cdn.com/v4/letter/a/a6a055/32.png) [@AFAIKnow](https://boards.straightdope.com/u/AFAIKnow)\ **Post date:** [January 10, 2006, 8:49pm UTC](https://boards.straightdope.com/t/alito-confirmation-hearing/339187/61 "2006-01-10T20:49:18Z")
Anyone else see John Kerry on the floor taking pictures? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [January 10, 2006, 8:53pm UTC](https://boards.straightdope.com/t/alito-confirmation-hearing/339187/62 "2006-01-10T20:53:51Z")
> [@BrainGlutton](#): > > Sandra Day O’Connor is still in good health and has stated her intention to keep on working until her replacement is confirmed. So the seat is not really “vacant,” and a recess appointment would be very hard to justify. It would be easier to justify in this case than a filibuster would. Alito is not only qualified, he is highly qualified. There is no reason to believe that another conservative, highly qualified appointee would be treated any differently. Actually, I think a recess appointment might be a good way to avoid the nulcear option. If the Dems fillibuster the vote, then Alito stays on the court. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [January 10, 2006, 8:59pm UTC](https://boards.straightdope.com/t/alito-confirmation-hearing/339187/63 "2006-01-10T20:59:59Z")
> [@John Mace](#): > > Actually, I think a recess appointment might be a good way to avoid the nulcear option. If the Dems fillibuster the vote, then Alito stays on the court. Errmm . . . No, he **doesn’t, John.** If Alito gets a recess appointment, and the Dems filibuster the vote so that the next Senate session ends without the Senate voting to confirm him, then, at that point\* Alito is no longer an associate justice of the SC. \*January 2007 – the same date when John Bolton loses his job as Ambassador to the UN, if the Senate has not yet confirmed him. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [January 10, 2006, 9:02pm UTC](https://boards.straightdope.com/t/alito-confirmation-hearing/339187/64 "2006-01-10T21:02:03Z")
> [@John Mace](#): > > It would be easier to justify in this case than a filibuster would. Alito is not only qualified, he is highly qualified. There is no reason to believe that another conservative, highly qualified appointee would be treated any differently. > > Actually, I think a recess appointment might be a good way to avoid the nulcear option. If the Dems fillibuster the vote, then Alito stays on the court. I don’t think you get it. We;re not talking about philsophical or moral “justification.” We’re just talking about process. A recess appointment isn’t possible unless there’s a _vacancy_. O’Connor has not yet vacated. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [January 10, 2006, 9:08pm UTC](https://boards.straightdope.com/t/alito-confirmation-hearing/339187/65 "2006-01-10T21:08:21Z")
> [@Diogenes the Cynic](#): > > I don’t think you get it. We;re not talking about philsophical or moral “justification.” We’re just talking about process. A recess appointment isn’t possible unless there’s a _vacancy_. O’Connor has not yet vacated. Wow, you’re suddenly interested in the process? I’ll keep that in mind in the future. But where do you get that a recess appointment can’t be made until there is a vacancy? O’Conner resigned. Why doesn’t the resignation trigger the ability to make a recess appointment? I would not be surprised if she went ahead and vacated if the Senate filibusters Alito. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [January 10, 2006, 9:21pm UTC](https://boards.straightdope.com/t/alito-confirmation-hearing/339187/66 "2006-01-10T21:21:02Z")
> [@John Mace](#): > > O’Conner resigned. Why doesn’t the resignation trigger the ability to make a recess appointment? She has **not** resigned. She has announced her retirement, **effective on the confirmation of her successor.** [http://en.wikipedia.org/wiki/Sandra\_day\_o'connor#Retirement](http://en.wikipedia.org/wiki/Sandra_day_o%27connor#Retirement) ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [January 10, 2006, 9:21pm UTC](https://boards.straightdope.com/t/alito-confirmation-hearing/339187/67 "2006-01-10T21:21:13Z")
> [@John Mace](#): > > Wow, you’re suddenly interested in the process? I’ll keep that in mind in the future. What is this in reference to? Since when have I opposed the process? > [@](#): > > But where do you get that a recess appointment can’t be made until there is a vacancy? From the same place I get the notion that a _regular_ appointment can’t be made unles there’ a vacancy. Recess appointments are supposed to allow for emergency appointments in the event that a justice drops dead and needs to be replaced right away. Right now, there is no emergency. The seat has not been vacated until O’Connor leaves it. > [@](#): > > O’Conner resigned. Why doesn’t the resignation trigger the ability to make a recess appointment? Because she hasn’t yet vacated the seat. There is no emergency. > [@](#): > > I would not be surprised if she went ahead and vacated if the Senate filibusters Alito. I don’t think that Justice O’Connor is so petty or small minded or partisan as to pull a stunt like that, and it would only work temporarily anyway, as **BrainGlutton** said. It would probably also backfire politically. The Pubs are running pretty low on political capital as it is, what with their illegal war and the White House scandals and the Abramoff troubles and so forth. They don’t need to further harm themselves before an election with such a tawdry and undemocratic maneuver as that. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [January 10, 2006, 9:22pm UTC](https://boards.straightdope.com/t/alito-confirmation-hearing/339187/68 "2006-01-10T21:22:30Z")
An honest question, as I don’t know the answer. Suppose that Bush says to SDO’C, “I accept your resignation and now require that you vacate your position.” He then makes a recess appointment. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [January 10, 2006, 9:25pm UTC](https://boards.straightdope.com/t/alito-confirmation-hearing/339187/69 "2006-01-10T21:25:10Z")
> [@John Mace](#): > > An honest question, as I don’t know the answer. Suppose that Bush says to SDO’C, “I accept your resignation and now require that you vacate your position.” He then makes a recess appointment. How can he accept a resignation that hasn’t been tendered. The President does not have the power to fire Supreme Court Justices, nor does he have the power to dictate the therms of their resignations. They are not his employees, they are a separate, but equal branch of government. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [January 10, 2006, 9:26pm UTC](https://boards.straightdope.com/t/alito-confirmation-hearing/339187/70 "2006-01-10T21:26:10Z")
> [@John Mace](#): > > An honest question, as I don’t know the answer. Suppose that Bush says to SDO’C, “I accept your resignation and now require that you vacate your position.” He then makes a recess appointment. Still up to O’Connor. The president has no authority to “require” that she vacate her post. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [January 10, 2006, 9:28pm UTC](https://boards.straightdope.com/t/alito-confirmation-hearing/339187/71 "2006-01-10T21:28:24Z")
> [@BrainGlutton](#): > > Still up to O’Connor. The president has no authority to “require” that she vacate her post. Says who? What would happen if Bush did what I said? ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [January 10, 2006, 9:30pm UTC](https://boards.straightdope.com/t/alito-confirmation-hearing/339187/72 "2006-01-10T21:30:41Z")
> [@John Mace](#): > > Says who? > > What would happen if Bush did what I said? She would tell him he’s flying in the face of the constitutional requirement and two-centuries-old tradition of a completely independent judiciary. Then, I hope, she would tell him to fuck off. Maybe even withdraw her resignation, who knows; that’s unprecedented, but there’s no (legal) reason why she can’t do it. SC justices hold their posts for **life,** or until they decide to retire. ---
**Author:** ![Lemur866](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lemur866/32/434_2.png) [@Lemur866](https://boards.straightdope.com/u/Lemur866)\ **Post date:** [January 10, 2006, 9:31pm UTC](https://boards.straightdope.com/t/alito-confirmation-hearing/339187/73 "2006-01-10T21:31:20Z")
Look, if Alito doesn’t break down on the witness stand Perry Mason style, I’m saying there’s no way the Democrats can sustain a filibuster. I don’t think you’ll find enough Democrats who’d vote against a qualified non-insane candidate just because he’s also conservative. Against Harriet Myers, the unqualified Bush lackey, yes. Sam Alito, I’m thinking no. And if a recess appointment is undemocratic, why won’t a filibuster be seen as undemocratic? I don’t think Sam Alito being more conservative than Sandra Day O’Connor is enough political cover to sustain a filibuster. ---
**Author:** ![zev\_steinhardt](https://avatars.discourse-cdn.com/v4/letter/z/97f17d/32.png) [@zev\_steinhardt](https://boards.straightdope.com/u/zev_steinhardt)\ **Post date:** [January 10, 2006, 9:31pm UTC](https://boards.straightdope.com/t/alito-confirmation-hearing/339187/74 "2006-01-10T21:31:20Z")
> [@John Mace](#): > > Says who? > > What would happen if Bush did what I said? She could say “no.” And then tell Bush to take it to the courts. 🙂 Zev Steinhardt ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [January 10, 2006, 9:32pm UTC](https://boards.straightdope.com/t/alito-confirmation-hearing/339187/75 "2006-01-10T21:32:14Z")
> [@Diogenes the Cynic](#): > > How can he accept a resignation that hasn’t been tendered. The President does not have the power to fire Supreme Court Justices, nor does he have the power to dictate the therms of their resignations. They are not his employees, they are a separate, but equal branch of government. Have you read her actual resignation? How do you know she hasn’t resigned? I interpreted her resignation thusly: I resign, but am willing to serve until a replacement is found. Bush has found a replacement, which he will make thru a recess appointment. According to your logic, the Senate can’t vote on her replacement since she’s hasn’t resigned. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [January 10, 2006, 9:35pm UTC](https://boards.straightdope.com/t/alito-confirmation-hearing/339187/76 "2006-01-10T21:35:15Z")
> [@John Mace](#): > > Have you read her actual resignation? You can read it here: [http://en.wikipedia.org/wiki/Image:Oconnor070105\_0001.jpg](http://en.wikipedia.org/wiki/Image:Oconnor070105_0001.jpg) It is clearly not effective until the confirmation of her successor. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [January 10, 2006, 9:39pm UTC](https://boards.straightdope.com/t/alito-confirmation-hearing/339187/77 "2006-01-10T21:39:13Z")
> [@John Mace](#): > > Says who? The Constitution. > [@](#): > > What would happen if Bush did what I said? Nothing more than if I said it. The Supreme Court is not a Cabinet position. They do not serve at the pleasure of the president. Are you familiar with the separation of powers in the US government. Bush can’t tell a SC Justice when to leave anymore than he can tell a Senator when to leave. It’s out of his jurisdiction. O’Connor has not yet resigned. She has only announced that she WILL resign when her replacement is confirmed. She can change her mind tomorrow if she wants to. The SC is a lifetime appointment. She can leave entirely at her leisure or leave never. The POTUS has no say in the matter. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [January 10, 2006, 9:44pm UTC](https://boards.straightdope.com/t/alito-confirmation-hearing/339187/78 "2006-01-10T21:44:41Z")
> [@BrainGlutton](#): > > You can read it here: [http://en.wikipedia.org/wiki/Image:Oconnor070105\_0001.jpg](http://en.wikipedia.org/wiki/Image:Oconnor070105_0001.jpg) > > It is clearly not effective until the confirmation of her successor. I suppose Bush could argue that his recess appointment is equivalent to a confirmation. 🙂 Still, I suspect that if the Dems decide to filibuster Alito, Bush could convince O’Conner to resign immediately. If not, he could call her bluff, and appoint an even more conservative justice than Alito. O’Conner wants to leave. I doubt she wants to play games with the Democrats. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [January 10, 2006, 9:55pm UTC](https://boards.straightdope.com/t/alito-confirmation-hearing/339187/79 "2006-01-10T21:55:11Z")
> [@John Mace](#): > > I suppose Bush could argue that his recess appointment is equivalent to a confirmation. 🙂 He could **argue** that, but it makes no difference unless O’Connor agrees. It’s all up to her. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [January 10, 2006, 10:05pm UTC](https://boards.straightdope.com/t/alito-confirmation-hearing/339187/80 "2006-01-10T22:05:32Z")
> [@BrainGlutton](#): > > He could **argue** that, but it makes no difference unless O’Connor agrees. It’s all up to her. Well, if we’re talking about the ultimate authority here, it’s the president who controls the law enforcement arm of the government. If Bush really thought he had the authority to boot her, he could… whether she wanted to be booted or not. [Previous page](https://boards.straightdope.com/t/alito-confirmation-hearing/339187.md?page=3) [Next page](https://boards.straightdope.com/t/alito-confirmation-hearing/339187.md?page=5)