ConfirmThem

I wonder what the RollCall article has to say. The beginning sounds as if the Senate Republicans will NOT be closing down the Senate yet over Southwick. I'm not sure why Specter is courting the Dem members of the Gang (Joe Lieberman, Robert Byrd, Ben Nelson, Mary Landrieu, Daniel Inouye, Mark Pryor and Ken Salazar) to help on Southwick. None of them are on the SJC and none are strong enough in their own party to force Reid and the liberals (Kennedy, Biden, Feingold, Schumer, Durbin, Clinton, Feinstein, Boxer, Kerry) to reconsider Southwick. In general, I would assume that the only Gang members he could even get on his side are Nelson, Landrieu and Pryor. Byrd is iffy, and Salazar has never really supported a conservative judge outside of William Pryor, whom he knew as a state attorney general. Inouye and Lieberman are too liberal to support Southwick.

Here comes the Gang of 14 to the rescue!! Hooray!!

Lieberman will support Southwick. He has no reason to fight the Dems' silly partisan battles anymore, and he's not interested in doing so.

Has anyone heard exactly what Specter said about Southwick today in his press conference?

http://home.businesswire.com/portal/site/google/index.jsp?ndmViewId=news...

"“Once again, the decision to politicize a federal appeals court nominee is taking precedence over filling a very crucial seat on one of the nation’s most important appeals courts,” said Jay Sekulow, Chief Counsel of the ACLJ. “Judge Southwick has had a distinguished legal and military career.""

http://www.earnedmedia.org/cwa0726.htm

"Iraq War Vet 'Spit On' by Democrat Senators

Senators call judicial nominee who risked his life to free Iraqis "racist."

"Is this how our Iraq War veterans will be treated when they return?" asks Concerned Women for America's President."

This is a HUGE strategic mistake on the GOP's part. This will not accomplish anything that moves conservative judges forward. It might actually do the opposite by having Leahy and Co stop Elrod for spite. I know this is not a popular idea but here it is again. Give the Dems their body by having a vote for Southwick and having it fail 10-9. Get them on the record. Dont just keep pointing this off a la Haynes. There is nothing the GOP can do right now to get Southwick confirmed. Even if Johnson died tomorrow to give us a narrow majority, there is no way Southwick would not be filibustered at this point. It is time to face reality. As much as I hate to say it, let Southwick sink and get as much as you can for him.

...bi-partisanship only cuts one way. Gang of 14 was to stop conservatives from being confirmed in a GOP senate, not enable them to be confirmed in a Dim-controlled senate.

The point is they won't get anything from the Dems for giving Southwick up. We've learned this lesson already. We have to fight on every pick if necessary. No trades - the Dems don't honor any such agreements, because they have no honor.

‘We will continue to set the record straight on Judge Southwick,’ McConnell says

Democrat mischaracterizations of Southwick are ‘gross insinuations’

Washington, D.C. – U.S. Senate Republican Leader Mitch McConnell delivered the following statement (as prepared) on the Senate floor Thursday regarding the nomination of Judge Leslie Southwick to the Fifth Circuit Court of Appeals:

“Over the past few days, Members of the Democratic Leadership have commented about Judge Southwick’s nomination. These comments have mischaracterized his record and his service to the people of his state.

“Worse still, some of our Democratic colleagues have made insinuations about the commitment of this fine man to the principle of equal justice for all.

“These gross insinuations are, of course, at odds with the views of his peers and his home-state Senators, both of whom actually know the man.

“So over the next several days, we will continue to set the record straight—as the ranking member did so ably yesterday—to ensure that the Senate does not treat dishonorably an honorable man, a fine judge, and a courageous war veteran. Judge Southwick deserves more from his country than insinuation and innuendo.

“This leads me to a broader point. My friend, the Majority Leader, and I have an understanding as to how this Senate will treat judicial nominees in general. A fundamental component of that understanding is that individual nominees will be treated fairly.

“That commitment to fair treatment may be in serious jeopardy with the Southwick nomination.

“Let me remind my colleagues, the Judiciary Committee unanimously approved Judge Southwick for a lifetime appointment to the district court just last fall. But it is now threatening to kill his nomination on a party-line vote in committee.

“The only material change in Judge Southwick’s qualifications between then and now is the rating of the American Bar Association—the Democrats’ ‘gold standard’ for judicial nominees. The ABA has increased its rating of Judge Southwick from ‘well qualified’ for the district court to ‘unanimously well-qualified’ for the circuit court.

“It goes without saying that for Committee Democrats to oppose Judge Southwick for the circuit court after having supported him for the district court without any change in the man’s record would certainly fall short of treating the man fairly.

“So I encourage my Democrat colleagues to think hard about the implications of unfair treatment for Judge Southwick for this Congress and for future Congresses.”

At this point, I think the Dems will try any trick to derail the confirmation of any Bush nominee. Look at what Nan Aron is now saying about a relatively minor nominee like Jennifer Walker Elrod. Although I think Keisler would be a much better candidate to have this fight over, I think getting Southwick a committee vote is a necessary fight.

I do, not, however, view the fight in the same light as as some other conservatives. I think that Lott and Cochran should immediately ask Leahy for a committee vote on Southwick, regardless of whether or not he will be confirmed. They should NOT be afraid of a negative result. If Southwick is voted down in committee, so be it. Then he should be replaced immediately with someone just as conservative, but this time a minority and/or female.

My fight is for each Bush nominee to get a hearing, a committee vote and then a full senate vote if lucky enough to get out of committee. If all of those nominees are voted down either in committee or on the full senate floor, then it will be a great campaign issue for 2008. Otherwise, Dem obstructionism of judges will remain a silent issue.

Unfortunately, McConnell's statement is just a veiled threat against the confirmation of future Dem nominees. Again, he wimps out and refuses to shut the Senate down. McConnell's threat is useless since the Dems have every intention of using the nuclear option to stop any future Republican judicial filibuster. MCCONNELL NEEDS TO SHUT THE SENATE DOWN NOW!!!! Stop all this meaningless rhetoric!

That phrase doesn't even make sense - how about FALSE insinuations?

As you can see having a committe vote is exactly what I have called for. Southwick WILL lose that vote. This is no longer a fight over this one position or this one man, rather this is a fight over principle on both sides now. The N word case doesnt matter. The fact that he is an Iraq war vet doesnt matter. Southwick has become a side show for the various interest groups on both sides. I do not like how this process but this is what it has become. Leahy has repeatedly offered a vote. For McConnell to "shut down the senate" before that occurrs is retarded. We will look like fools.

Reid will be like "we want to have a vote but Specter/Lott wont allow us to have it. It is the Republicans who are obstructing. Leahy has confirmed more judges that Hatch and Specter combined. blah blah blah."

Look we dont run the show anymore (if we ever did). The Dems are entitled to their pound of flesh just like the GOP was in the late 90's. This is the Senate, cut a deal and move on people.

I was watching CSPAN 2 a lot today. Sessions is by far my favorite senator. With all this talk about their being no good choice in the GOP field for president, why has he not thought about dropping his hat in the ring?

I'm not sure how many votes they need for a discharge petition to pass, but if this would muster enough votes for them to do so, it could be a way forward.

A better way would be to talk Leibermann into caucusing with the GOP based on Judges AND Iraq. Then we'd run the SJC.

Oz

www.first-cut-politics.blospot.com

Even if Lieberman switched. Southwick would still be filibustered on the floor. If we couldnt nuke with 55 there is no way it happens with 49 plus Joe. The Dens hold all the cards on Southwick and there is nothing we can do and they know it.

The partisans on the SJC might oppose him, but some of the more 'moderate' Democrats? They won't.

Name 11 Dem Senators that wont filibuster. You will be lucky if you can name more than 5! Let's not kid ourselves.

jtp7 is correct. There is no way the Republicans can peal off ELEVEN Democrats to prevent the filibuster of a Southwick discharge petition. Although I do not think he should be withdrawn yet, I do think Southwick's nomination should be laid aside for the moment and that Elrod, Tinder and Haynes should be pushed instead.

I would pleased if Keisler was recess-appointed in August, but not Southwick. I think Keisler's credentials could withstand the inevitable Dem complaints against his appointment. Unfortunately, however, I think if Southwick was recess-appointed the Dems would spin it as Bush appointing a known racist. As for those who are afraid that a recess appointment would ruin Keisler's chances of an eventual Senate confirmation, I don't see that he has much of any chance anymore of being confirmed as long as his name is sunk in silence. If he is recess-appointed, however, it would at least keep his name continually in the spotlight.

Lieberman
Byrd
Nelson
Landrieu
Webb
2 AR
2 MT
2 ND

You don't filibuster as the majority without looking extremely foolish at best. The Democratic leadership packed the SJC with 10 partisans to prevent the 'moderates' from having to filibuster on the record.

Agreed on recess appointing Keisler and not Soutwick. I have a question for you on the recess appointment procedure. After the recess appointment of Sean Fox to be ambassador to Belgium, Reid said he would not have a recess long enough for Bush to do that again. I assume Reid means business. How can we recess appoint Keisler in that situation?

As I understand it, the aren't that useful in the Senate. I don't know if they can be filibustered; I do believe, however, that Leahy and Reid can ignore them.

You can recess appoint during a 1 hour recess. Teddy Roosevelt I believe did so.

It's not proper 'protocol' though, so the Dims will go into a hissy fit.

BoBo has got it exactly right. Southwick needs a vote up or down in Committee ASAP. Dems are using the one at a time tactic to stop up all nominees behind the stalled one. Not only wasn't there a CCA nomination in June, there wasn't even a hearing until July 19th, and an Elrod confirmation before the August recess is quite problemmatical (although Dems may decide to throw that bone on the last day before recess).

As I mentioned before, with the DJ delay this week, Democrats now have precedent for a new round of procedural delay for any CCA (or DJ) nomination: a one-week delay between a favorable SJC vote and placement on the Executive Calendar. Expect them to use it in the future.

As for Senator Sessions, he has a unigue perspective on the horror of Southwick's treatment. He suffered a similar fate in the mid-eighties, when his nomination as a DJ was blocked by Senate Dems. using the same spurious and disgusting race-baiting tactics. And I agree that he is the Senate GOP's most eloquent spokesmen on this issue.

Days elapsed since last CCA confirmation: 78

http://www.senate.gov/reference/resources/pdf/RS21308.pdf

Everyone agrees that recess appointments during an adjournment of 30 days is totally consititutional. In practice, though, appointments during recesses of 10-30 days are also considered constitutional. Appointments during recesses of 3-10 days MAY be constitutional but also considered somewhat dubious. Appointments during recesses of less than 3 days are considered unconstitutional.

William Pryor was recess-appointed during a ten day recess in 2004. Therefore, the Dems would be hard-pressed to deny that a recess appointment during the August recess this year (from the end of Friday, August 3rd, to the beginning of Tuesday, September 4th) was constitutional.

Any judge recess-appointed this August could serve until January 2, 2009.

IIRC, Reid and Leahy cannot ignore a discharge petition. They would be forced to go into immediate executive session to consider it. Then, however, they could filibuster it.

Under the last paragraph of Article II, Section 2, the president can make 'recess' appointments "during the Recess of the Senate". So if a Recess of any length occurs, Bush is entitled to make any appointment he chooses. Presumably, even in this degraded era, the text of the Constitution will trump the whims of Dirty Harry Reid. And 'Senate practice and precedents' are not determinative in this matter.

To prevent Recess Appointments, Reid would have to keep the Senate in constant session through January 2009. If Dirty Harry and Turban Durban try it, Senate Republicans should make things as much of an absolute hell for the Dems as possible.

A few moderate Dems like Landrieu who might tend to vote for it would be allowed to, but the rest whom you'd expect to see do so would vote to filibuster under the argument that the GOP is trying to throw away the long-established Committee process instead of playing by the rules of the World's Greatest Deliberative Body.

"In practice" is extra-legal and extra-Constitutional malarky. Let Dirty Harry & friends take the matter to court on that flimsy basis and see how far he gets. He'll be thrown out of court on his corrupt ... donkey.

Days elapsed since last CCA confirmation: 78

It's not that easy. When Bush recess-appointed Pryor, Ted Kennedy went to court to stop it. The 11th Circuit said that Bush was in his rights. The Supreme Court denied cert, but Stevens wrote an opinion saying that he was willing to hear the merits of the case if and when he decided Bush was abusing his recess-appointment authority. No doubt Stevens would be joined by Souter, Ginsburg and Breyer if a new case came up to accept cert. That would leave the whole thing up to Kennedy.

In general, it seems highly unlikely that any judge would deny the constitutionality of an appointment during the 30 day August recess. But if the Dems did challenge it, since Kennedy would control the final vote, Keisler (a former Kennedy clerk) would stand a much better chance of succeeding than Southwick.

It will be mid 2008 and the recess appointment would be mostly expired, anyway.

There is plenty of precedent, including Eisenhower's SCOTUS judges.

I am all for Bush recess-appointing Keisler this August. I am not for recess-appointing Southwick for two reasons:

1) Southwick's appointment could be unfortunately spun against Bush and the Republicans as the appointment of a racist in a Southern state.

2) If the Dems challenge the recess-appointment, Keisler has a much better chance of withstanding it than Southwick. If Southwick is the person the Dems challenge and the case fails because of him, it would be a real restraint on a presidential right directly expressed in the Constitution. I don't want to give the Dems that victory.

Oh come on now…
All this naysayer talk about Southwick being dead will leave him in the same position as Keisler.
Specter or Cochran could just request the SJC vote on Southwick but they think the fight is worth having over his nomination. I say support them in their defense of Southwick, and push for Keisler’s recess appointment (as if blogs have much sway). The new CCA nominees will endure the same harsh treatment the current pending nominees have received if there is not a fight right now. Either that, or a “deal” will need to be brokered which will be no deal at all.

Here is more fodder for the followers:

http://www.investors.com/editorial/editorialcontent.asp?secid=1501&statu...

The Warlocks Of Southwick
INVESTOR'S BUSINESS DAILY

Posted 7/26/2007

The Judiciary: Unnerved by the Supreme Court's tilt to the right, and with a possible vacancy looming, Democrats are once again blocking qualified judicial nominees to please the special interest groups they serve.

We have noted the rightward tilt of the Supreme Court after the Bush appointments of Justice Samuel Alito and Chief Justice John Roberts. The recent decision that integration plans in public schools in Louisville and Seattle were unconstitutional — with Roberts declaring that "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race" — indicated that the court was adhering more closely to the Founding Fathers' interpretation of the document they wrote.

Now, with the possibility of one or more vacancies on our highest court, Democrats and their special interests are revving up in a way not seen since the "gang of 14" brokered a deal to end judicial filibusters in exchange for taking the "nuclear option" of simple majority-vote confirmations off the table. They're afraid Bush will further shift the courts to the right, perhaps for a very long time.

Enter Judge Leslie Southwick, President Bush's nominee to a seat on the 5th Circuit Court of Appeals. Not just any seat, but the seat held by Charles Pickering after a recess appointment by Bush. Pickering's confirmation was blocked by a malicious campaign that branded him a racist despite praise for his record on civil rights.

The seat has gone without a permanent judge for seven years now, largely because Democrats have blocked the last three nominees. As a result, the vacancy has been declared a "judicial emergency." Democrats appear to be blocking Southwick as well.

Southwick has served honorably for 11 years as a state appellate judge, has 20 years experience in private practice and served in the Justice Department of Bush 41. The American Bar Association's judicial-evaluations committee unanimously gave him its highest "well qualified" rating.

Last year, with no Democratic opposition, the Senate Judiciary Committee approved his nomination to a federal district-court seat. Senate Majority Leader Harry Reid and Judiciary Committee Chairman Pat Leahy assured Republicans that Southwick would be confirmed by Memorial Day. So what happened?

As Edward Whelan, president of the Ethics and Public Policy Center, tells it, the Human Rights Campaign and the People for the American Way wrote a letter to the Judiciary Committee claiming that two opinions Southwick joined — out of some 7,000 — were "highly disturbing" and "strongly suggest that Southwick may lack . . . commitment to social justice progress."

In one case, PFAW President Ralph Neas laments that the Mississippi appellate-court judge used "gratuitously anti-gay" terminology in describing lesbians. The term, used in a custody case between a father and a lesbian mother, was "homosexual lifestyle."

How bigoted can you get? Never mind that President Clinton used the phrase "homosexual lifestyles" in announcing his "don't ask, don't tell" policy for the military or that liberal icon Ruth Bader Ginsburg used the phrase in ruling against Texas' anti-sodomy law.

In the other case, Southwick's court ruled that a white state employee did not merit termination for derogatorily referring to an African-American co-worker. The racial slur was made outside the target's presence, an apology was offered and accepted, and the workplace was not disrupted as a result.

In the first six months of 2007, the Senate has confirmed only three appellate court judges. The average was 17 in the last two years of the administrations of Ronald Reagan, Bush 41 and Bill Clinton. President Bush has an opportunity to cement his legacy by further molding the federal courts in the direction of strict construction, and the Democrats know it.

If the Democrats resurrect their politically unjustified obstructionism, perhaps the nuclear option should also be resurrected. And in case the GOP needs a winning campaign issue, this just might be it.

Actually, it is that easy. Stevens and the other three non-judicial, utterly lawless and partisan justices would probably do as you say. But Kennedy at least generally adheres to the text of the Consttution in a crunch. So the Constitution would very probably be upheld 5-4 in this matter. That the margin would be so close is a telling comment on how far towards judicial activist lawlessness we have moved. See, for example, the title of Breyer's book: "ACTIVE Liberty".

Presumably some people out there can still ascertain the etymological and semantic connection between "Active" (as in "Active Liberty") and "Activist" (as in "judicial activist").

If you don't, please tell me and I will explain it further.

And, by the way, the lawless liberals couldn't even get cert. over Pryor, (probably before Alito replaced O'Conner). Why in the world would anyone suppose that they could even get cert. now, not to mention a favorable ruling on the merits?

You haven't explained how Specter can reasonably expect anything to change if McConnell doesn't shut down the Senate. All the Dems walk lock, stock and barrel with Reid. Webb, Tester and the other new Dems will not dare buck Reid in their first year. The only two who can reasonably expected to vote for Southwick are Nelson of Nebraska and Landrieu of Louisiana. Salazar is a liberal in sheep's clothing as is Lincoln of Arkansas. Pryor might be amenable but not likely. That leaves Specter getting at most three Dems on his side (Nelson, Landrieu and Pryor), three Dems who are not on the SJC and whose numbers by themselves cannot prevent a Dem filibuster even if the nominee does get out of committee. Again I say, Southwick only gets a vote if McConnell shuts down the Senate, something he is not even suggesting at the moment. I see no change in any Democrat votes otherwise. Do we wait until the end of time until some do? There has to be a time limit to this, a time limit that doesn't adversely affect Elrod, Tinder and Haynes.

I am not sure what you are suggesting. Which choice do you want?

CHOICE A - only Keisler gets recess-appointed
CHOICE B - only Southwick gets recess-appointed
CHOICE C - both Keisler and Southwick get recess-appointed
CHOICE D - Keisler, Southwick, Kethledge and Murphy get recess-appointed
CHOICE E - all of Bush's outstanding judicial nominees (Keisler, Southwick, Kethledge, Murphy, Elrod, Stone, Haynes, Tinder and Conrad) get recess-appointed.

Personally, I think CHOICES D & E could be successfully spun by the Democrats as being too extreme and would ruin the chances for any more COA confirmations.

Bobo

I am tracking your reasoning here, but giving up on the nominee currently receiving all of the media attention will almost be like a tradeoff in HOPE of getting additional nominees through the pipeline.

There is no incentive to change anything at this point. Even if the Dems agreed to trade off a few confirmations, it is not like anybody can bank on their word – see Southwick.
Maybe McConnell can be pushed by his own party to take a real stand on this issue and get the process moving again.

If the liberal assassins get one nominee right now, then they will go for them all.
I cannot present to you a foolproof plan to guarantee confirmations. The present situation demands an all out fight even if Southwick is voted down.

Did Specter's press conference on Southwick ever happen at noon today? I can't find anything on the internet about it. If he cancelled it, then that is a very bad sign indeed. It shows that he can offer no real hope of getting Southwick confirmed. I think it is important to note that McConnell's floor speech on Southwick (which was given around the same time that Specter was supposed to be speaking to reporters) was really wimpy. All it threatened the Dems with was Republican obstruction of future Dem nominees, something I think the Dems could care less about right now.

What needs to be done now is have Lott and Cochran ask for an immediate committee vote and let the chips fall where they may. That will resolve the situation once and for all. For the Republicans to stall on Southwick anymore seems useless. It won't change any Democrat votes unless there is a painful bite attached. What is that bite, and who will give it?

You have a point. If there will be no consequence for the Dems opposition to Southwick then there is no use in delaying the inevitable.
Even though the Dems look foolish in their handling of Southwick, it does not sound good when media reports that it is Specter who delayed the SJC vote on Southwick.
The entire situation brings shame to the Senate.

I would be very surprised to see him vote against an Iraq War veteran. The same might be true for Webb, although for a different reason.

I would be very surprised to see him vote against an Iraq War veteran. The same might be true for Webb, although for a different reason.

is LONG overdue. you think Lieberman is going to deny an Iraq war vet a vote? Nelson, Pryor, Landrieu, and Byrd (I mean, surely one southern white racist will vote for another southern white "racist", right?) are all pretty much locks, IMO. I think Byrd and his own 2008 reelection campaign could well bring Rockefeller over too. the ND Senators are possible gets. as are freshmen Casey, Webb, and Tester. that's 11 right there, and possibly more. it is of course true however that trusting any Dem to have a shred of honor or decency these days, much less 11 of them, is a lot to ask. but it is possible, and such dispicable behavior and slander MUST NOT BE ALLOWED TO STAND. period. the line must be drawn in the sand now - late, but better than never.

Looks like my comment after the PBA case has come true. It's been 3 months or so and there hasn't been 1 prosecution under the FPBAA. Given that statistics show around 2000 pbas a year, there should have been around 500 or since the ruling.

Does everyone think doctors just stopped doing them and the all switched to the DE? Perhaps. More likely, they're still doing them and no one really cares. It certainly doesn't appear that enforcement of this law is high on the DOJ radar.

I predict there will not be even 1 prosecution under this law for the remainder of Bush's term.

My answer as of now is: None

My answer as of the August recess is: if Southwick has not been confirmed-- "Choice B-only Southwick gets recess-appointed"

I'd still be interested to hear your reply to the points I raised in my #35 and #36, which you temporarily evaded in your #38, but will likely address in short order.

In general, I think it would be almost impossible for the Dems to challenge a recess-appointment this August because the August recess this year will be 30 days long. In addition, in Southwick's case, the challenge would be processed through the Fifth Circuit en banc, and in Keisler's case through the D.C. Circuit en banc. As both the Fifth Circuit and D.C. Circuit are conservative courts, both Southwick and Keisler should have no problems there.

The situation gets sticky when the case hits the Supreme Court. It all depends on Kennedy. If Kennedy is hurt that he has been vilified by the liberal MSM because of his abortion and race decisions this term, he may try to be more liberal next. That is exactly what happened after he got bad press in Bush v. Gore: he later wrote Lawrence v. Texas and got back into the good graces of the libs.

In order to keep Kennedy in line, I think Keisler is the better candidate. I think it would be very difficult for Kennedy to deny one of his first law clerks a judicial appointment. In addition, if their close relationship caused Kennedy to recuse himself, the favorable COA decision would keep Keisler in place.

In conclusion, if Southwick is the appointment being challenged, I think Kennedy becomes an unknown quantity depending on how much he graves the adulation of Linda Greenhouse.

Why don't you want any recess-appointments this August? If there has to be one, why only Southwick? Why shouldn't Keisler get one as well?

How in the world would you expect an abortion doctor to be prosecuted if both he and his staff lie about doing late-term abortions? Even if they admit it, all they have to do to cover things up is to describe the procedure in terms of a threat to the life of the mother. The woman involved would probably lie too by exaggerating the description of her medical symptoms to be more in line with a life and death crisis . The only way the government could get evidence against an abortion doctor would be if they planted an actually pregnant woman with medical problems as a patient. That seems extreme.

Have you ever thought that because of the difficulties listed above the PBA ban has only ever been symbolic? I support Gonzalez v. Carhart not as a practical means of stopping abortion but as a necessary first step in the incremental dismantling of Roe. Once Roe has been dismantled and regulations on more mainstream forms of abortion are in place, then actual prosecutions can begin.

I think some of you have been sipping some. I think some of you have forgotten about the last 6 years. Thinking that droves of Democrats are going to suddenly come running to our side of the aisle over judges is the stupidest thing I have heard. Saying things like that is just not being realistic. How many of those names you mentioned voted to bottle up Estrada and Co? Nearly all of them.

"In conclusion, if Southwick is the appointment being challenged, I think Kennedy becomes an unknown quantity depending on how much he CRAVES the adulation of Linda Greenhouse."

In response to your first sentence (not accepting your incorrect premise): I do, Southwick, for reasons stated before and others not necessary to delineate at this point.

In response to your second sentence: because he is the only one who has been processed through a hearing and put on agenda for a SJC vote this year.

In response to your third sentence: Because he hasn't yet been placed on ant agenda by the SJC this year, and I think we should wait out the first part of the process before end-running with a recess appointment.

In general response: we can't stand passively and do nothing simply because the possibility exists that Kennedy may vote on a 5-4 majority against the text of the Constitution. He may well vote the other way. In any event, that's no excuse for preemptive surrender. For goodness sake, let's at least litigate the matter before declaring a loss. There's been far too much of the latter in the last few years.

The sentence # references refer to your #49, not #48. As for you #48, most of it is covered by my fourth paragraph ("general response") of my #51. Bottom line: we can't stand in paralysis because of doubt regarding Kennedy. Roll the dice!

I have no problem litigating a recess-appointment case with Keisler. I have much more of a problem litigating one with Southwick. Regardless of the unknown impact of Kennedy, the recess appointment of Southwick could give the Dems some unpleasant advantages concerning the idea that Bush has needlessly appointed a racist as a judge in the South. If a battle must be waged in court over recess appointments, it should be streamlined so that there are no unnecessary issues like racism attached to it. Too many variables in the kitchen could spoil the broth.

Don't you expect Reid to change the recess to 29 days if he thinks that will make a difference vs 30 days? Doesn't he control the calendar?

Forgetting about the perception of a bunch of recess appointments, why in terms of legality does it matter? If the Dems wants to challenge it, isn't the question whether the President has that authority or not? Why does it matter who the particular appointee is? I highly doubt Kennedy would rule it's okay to recess-appoint person A but not person B.

Legally, the 11th Circuit upheld Pryor's recess appointment during a 10 day recess. In other cases, recess appointments after 3 days have been accepted. Reid arranged the Senate calendar this year to make sure that there was a minimum of recesses longer than 10 days to reduce the number of times Bush had the opportunity to recess-appoint people. In order to best thwart Bush, Reid would have to reduce the traditional August recess break not to 29 days but to 10 days or less. That's not going to happen because it would disrupt the summer schedule of too many Dem senators.

I disagree about Kennedy. I think Kennedy is an emotionally sensitive guy who has to be handled with kid gloves. It would be much more difficult for Stevens and the libs to convince him to deny Keisler, one the clerks from his first SCOTUS term, a judicial position than it would be to deny Southwick a similar position. If Southwick AND Keisler were both recess-appointed at the same time, it could still help keep Kennedy on our side because Kennedy would know that in denying Southwick his new position, he would also be denying Keisler his. The recess-appointment of Southwick alone would not have the added benefit of pulling on Kennedy's heartstrings.

on 10 days vs 30.

Your thinking on Kennedy paints him as scary. To think that he would rule one way or the other depending on whether it involved someone he liked from a past association sounds like the exact opposite of someone who should be on the SC. Then again, I suppose that fits the claim some have made that if the Dems trash him often enough and virulently enough, he may tend to vote their way to try to change their mind. Leave it to the RBG's of the world to decide based on feelings - we need people there who decide based on the laws in question.

is there to establish a completely arbitrary 3 day minimum?

The SCOTUS ruled back in the 1800s that the power to pardon is free of any legislative restrictions....its quite reasonable to put recess appointments in the same boat.

The only question I can see is whether Bush could recess appoint a new Vice President.