According to this story in <a
href=”http://www.thehill.com/news/111203/judges.aspx”>The Hill, some
Republicans in the Senate are now considering the proposal I made back in
April on NRO in <a href="http://www.nationalreview.com/comment/comment-
barnett042903.asp”>Benching Bork: How to End the War Over Judges:
Conservative activists have for some time now juggled the idea of
using recess appointments to circumvent adamant Democratic opposition.
However, the idea appears to have gained momentum among lawmakers in the wake
of numerous failed attempts to hold an up-or-down vote on several of the
president’s most qualified nominees. “This is something I’ve been pushing
for,” said Jon Kyl (Ariz.), chairman of the Republican Policy Committee,
speaking of the recess option.
An alternative to appointing nominees such as Pickering, Bush could
appoint ultra-conservative alternates to fill vacancies on the bench. Such
substitutes might make the blocked nominees seem less controversial by
“You could also fill the positions with interim appointments who could step
aside [when blocked nominees clear the Senate.]” said Kyl, adding that the
president could make a very good case for that option.
It would be
quite interesting if the influence of NRO eventually contributed to the end of
what Larry Solum has aptly named the “downward spiral” over judicial