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Bench Memos

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RE: Whelan on “Sandy’s Catch-22”



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Ed may be right about a vacancy being required only for appointment, not nomination–I’ll reserve judgment while I think about it–but if the condition set forth in O’Connor’s letter has legal force, then she has unilaterally nullified the president’s recess appointment power, since she insists on senatorial “confirmation” before she will clean out her desk. And that cannot be admitted without saying that her condition supersedes the Constitution.



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