Anyone else see John Kerry on the floor taking pictures?
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.
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.
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.
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
What is this in reference to? Since when have I opposed the process?
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.
Because she hasn’t yet vacated the seat. There is no emergency.
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.
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.
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?
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.
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.
She could say “no.” And then tell Bush to take it to the courts. 
Zev Steinhardt
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.
You can read it here: http://en.wikipedia.org/wiki/Image:Oconnor070105_0001.jpg
It is clearly not effective until the confirmation of her successor.
The Constitution.
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.
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.
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.