The Controversy Over President's Bush Use of a "Judicial Recess Appointment":
Are Such Appointments Constitutional? Do They Hurt the Nomination Process?

By VIKRAM DAVID AMAR

Friday, Jan. 23, 2004

President Bush last week used a so-called "recess appointment" to place embattled federal district court judge Charles Pickering on the United States Court of Appeals for the Fifth Circuit. The recess appointment is a practice by which a President appoints someone to hold high federal office, albeit temporarily, without the advice or consent of the Senate.

Previously, in 2001, President Bush had nominated Pickering to the appellate court. But in early 2002, the then Democrat-controlled Senate Judiciary Committee voted 10-9 (on party lines) not to send his nomination to the Senate floor. (For a discussion of this episode, see my prior column with Akhil Reed Amar.)

Later in 2002, after the Republicans gained control of the Senate, President Bush made an attempt to revive Pickering's nomination. But that attempt was met with filibuster tactics.

All this history led, in turn, to last Friday's "recess appointment." The appointment will be in effect until January 2005, when the Senate's next session begins, unless the Senate confirms Judge Pickering to a lifetime post in the meantime.

The President's action prompted immediate and harsh reaction from his detractors. Democratic Presidential candidate Howard Dean, for example, said the appointment "show[s] the President's utter disdain for constitutional checks and balances," and is a "polarizing move."

In today's column, I'd like to analyze these two, related, criticisms - that the recess appointment is not in keeping with the Constitution's values, and that it elevates already high tensions between the parties in the judicial appointments process.

The Constitutional Basis for the Recess Appointment Power

To be sure, recess appointments are plainly constitutionally authorized as a general matter.

In Article II, the Constitution gives the President the power to "nominate, and by and with the Advice of the Senate appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other officers of the United States."

But just after that clause, it also gives the President the power to "fill up all vacancies that may happen during the recess of the Senate, by granting Commissions which shall expire at the end of their next session." Since these appointments occur while the Senate is in recess, they obviously are designed also to occur without the Senate's advice or consent, that is, without Senate confirmation.

The First Argument Against the Use of the Power in Pickering's Case

Was President Bush authorized to use the recess appointment power in the Pickering case? Some would say no -- for several reasons. But in the end, I believe they are wrong.

First, some have argued that a recess appointment may not be used to fill a vacancy (like the one on the Fifth Circuit) that existed prior to the beginning of the Senate's recess, because such a vacancy does not "happen during the recess" within the meaning of Article II. Put another way, this argument asserts that only those vacancies that come about for the first time during a recess may be filled under the recess appointments clause power.

I disagree with this reasoning. As noted above, the recess appointments clause of the Constitution appears right after the clause that gives the President the power to appoint "all officers of the United States" -- judges and cabinet members alike. This location implies that whatever the phrase "vacancies that may happen during the recess" means, it means the same thing for cabinet office openings as for judicial openings. And it would be unthinkable that the President couldn't fill a Cabinet vacancy that occurred right before a Senate recess began until after the Senate reconvened, which might be months later.

In short, because most recess appointments are not judicial appointments, but rather appointments to offices (like Cabinet posts) where time may be more of the essence, the word "happen" in the phrase "happen during the recess" must mean "happen to exist" rather than "happen to arise."

The Second Argument Against the Use of the Power in Pickering's Case

There is a second constitutional argument that might be asserted against the Pickering appointment. This argument contends that the recess appointment power itself does not apply to judicial vacancies at all, but rather extends only to the non-judicial appointments -- such as the appointments of cabinet members and other high level executive officers.

Initially, this argument seems undermined by the textual fact - as noted above - that the recess appointments clause comes right after the regular appointments clause that refers to "Judges of the Supreme Court, and all other officers of the United States." The location of the recess appointment clause thus suggests that it applies to the same offices - including judgeships - as does the regular appointments clause.

On the other hand, there is separate constitutional text, in Article III, that says that the "Judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall receive a compensation which shall not be diminished during their continuances in Office."

In effect, this means that federal judges have life tenure (unless impeached) and enjoy a salary that won't be reduced. And yet recess judicial appointees, by definition, do not have life tenure; their tenure ends when the next Senate convenes. Moreover, there appears to be widespread agreement that recess judicial appointees do not enjoy protection from salary diminution either.

The life tenure and guaranteed salary protections for judges who exercise "the judicial power of the United States" are designed so that litigants in federal court can be sure the judges in their cases are immune from political pressure. This judicial independence was thought at the founding to be one of the most important attributes of the federal judiciary, and one that differentiated it from many state benches.

So, the argument runs, because recess judicial appointees cannot enjoy the judicial independence required of the federal judiciary, the recess appointments clause must not have been intended to apply to judicial appointments. Notwithstanding the wording and location of the recess appointments clause itself, the more specific language in Article III concerning life tenure and salary guarantees - and the structural independence value it seeks to implement - trump over the broad language of the recess appointments provision.

This argument is far from frivolous. Indeed, it captured the votes of four dissenting (and quite prominent) judges of the Ninth Circuit in an en banc decision in Woodley v. United States. (There, a defendant whose bench trial had been presided over by a recess judicial appointee challenged her conviction.)

In Woodley, Judge William Norris wrote for the four dissenters, explaining that, for the issue to be resolved, either the broad language of the recess appointments clause or the judicial independence language of Article III had to give way. In the end, he concluded, the values behind the judicial independence language were too important to forsake -- and thus the broad recess appointments language could not govern. To be a federal judge, one must have the independence of a federal judge -- and that means lifetime appointment and fixed salary, the constitutional perquisites.

Why History Tends to Rebut the Argument Against Recess Appointments of Judges

I might accept this reasoning, but for the historical fact that judicial recess appointments have been made so often, by so many Presidents, in so many settings, beginning with George Washington, and none of the founding generation of judges or Congresspersons ever expressed any significant constitutional qualms about the practice.

Indeed, before the 1960s, each President in U.S. history, except two, had made use of judicial recess appointments. Overall, there have been more than 300 judicial recess appointments made, including more than a dozen to the Supreme Court.

Of course, I do not believe that all historical practices that go back to the founding are necessarily constitutionally permissible. However, I do think that an unbroken tradition of Presidential recess appointment of judges -- particularly when neither the Senate nor any prominent members of the founding generation seems to have objected -- weighs heavily in resolving an otherwise close question of constitutional text and structure.

Even if Constitutionally Permissible, Are Judicial Recess Appointments Wise?

To say that a President has the power is not to say that its exercise is a good idea, constitutionally or otherwise. It seems as if recent Presidents have realized the dangers inherent in the overuse of judicial recess appointments. Since 1969, there have been only three recess appointments of judges made, counting Judge Pickering's last week. (The other two appointments were made by President Carter and President Clinton. Carter's appointee was never confirmed to a regular seat on the district court, while Clinton's recess appointee to the Fourth Circuit, Roger Gregory, was later renominated by President Bush and confirmed to a regular seat on that court.)

One reason for the modern reluctance to use judicial recess appointments may be an appreciation of the concerns over judicial independence discussed by Judge Norris in the Woodley case. When a recess judicial appointee is not someone whom the President wants to appoint permanently to the federal bench, but rather is simply someone serving as a judge for up to one year, there is not a huge independence problem. But where the recess appointee is also being pressed by the President for confirmation to a full Article III judicial post, the recess appointee may feel some awkward pressure because he is at once a judge hearing cases, and a nominee for a permanent judicial post.

For example, when William Brennan was appointed to the Supreme Court during a recess, and then was later questioned by various Senators at his confirmation hearings, he was unable to answer some questions put to him because he already had cases pending before him on the Court. Having a judge "audition" for the job of judge by being a temporary judge may not lead to the best or easiest judging.

Another reason that modern recess judicial recess appointments are rare may be that they tend to exacerbate an already tense relationship between the Senate and the President concerning the filling of judicial vacancies. In the Pickering case, for example, an earlier Senate Judiciary Committee had already rejected Judge Pickering, and the Democrats had been using a filibuster to prevent a floor vote after Republicans regained control of the Committee.

This situation is similar to, but not exactly like, that which occurred when President Clinton selected Judge Gregory. Granted, Gregory had at the time of his recess appointment been nominated by Clinton to the Fourth Circuit. But he had not been processed at all by the Judiciary Committee (even though the Republican and Democratic Senator from his state supported his nomination), and was not given a hearing at all before the recess appointment was made. Perhaps that is partly why President Bush renominated Judge Gregory to a regular seat on the appellate court.

What can the Democrats in the Senate do if they are angry at President's Bush's move? Obviously, they can make more expanded use of the filibuster device that they are currently employing to block a handful of nominees from getting to the floor. Some Democratic Senators hinted last week that in response to the Pickering recess appointment they might oppose Bush appointees whom they heretofore might have been willing to accept. More directly, they may also resist confirming Pickering himself to a permanent seat, no matter how well he performs on the appellate bench. Depending upon which party gains or loses Senate seats in the November election, the filibuster may become an even bigger tool in judicial confirmation.

And, of course, all bets are off when the next President, whoever he is, fills the vacancy or vacancies on the Supreme Court that are very likely to occur before 2008. That is a topic that the Democratic primary campaigns have not yet really turned to, but that could be quite significant.


Vikram David Amar is a professor of law at the University of California, Hastings College of Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author of the Cohen and Varat constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

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