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March 25, 2005

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This series is just excellent work. I wanted to thank you for putting the effort and research. I have a couple of further tidbits to think about. Being a litigator, I of course think about suing people when they pull shenanigans such as those being batted around in the Munich beer hall that the Senate has become, and thus I like to poke around for judicial authority with which to arm for litigation. And, lo and behold, a cursory trip to the books reveals that not only is it the Supreme Court's view that the Seante is a "continuing body" as a matter of constitutional law, see McGrain v. Daugherty 273 U.S. 135, 182(1927), but there also is authority for the proposition that the Senate cannot derogate from its rules just because a majority decides that they are an inconvenient obstacle to what the majority would like to achieve: In United States v. Smith, 286 U.S. 6 (1932), the Senate confirmed a presidential appointment to an agency, and then, after tendering the confirmation to the President, reconsidered and tried to take the confirmation back (having mustered a majority vote against the appointment in the interim). The Court said no way, because the initial confirmation vote was conducted according to the Senate's rules, and the rules did not provide for a revocation of a confirmation vote. I think this precedent significant not only because it supports the sensible proposition that the Senate cannot simply make up the rules as it goes along, but it also suggests that a purported act of the Senate that is contended to violate those rules can be challenged in court.

Thanks for the kind words and the mercy comment, Gingerman. And also for kicking off the research for what's likely to become Part VII or VIII of the series, unless I am unable by tonight to remember what it was I intended to make Part VI.

We'll definitely need to look at the more solid cases, along with the more recent and fringe-y filings by Judicial Watch, claiming an enforceable right (as frequent litigants) to a full roster on the federal bench.

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