Q.  President Bush made two recess appointments of federal judges in early 2004. Democrats condemn him for bypassing the traditional Senate confirmation process. Republicans counter that recess appointments are a President’s constitutional right, a common historical practice that as recently as 2000 Democratic President Clinton has been utilized. What gives?

Answer:

Bear with me. This gets a little tricky. As we all learned so long ago that by now most of us have forgotten, the Constitution gives the President the authority (Article II, Section 2) 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.” What most of us never learned is that Section 2 contains another clause that grants 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.”

The framers recognized that the Senate would not always be in session to give advice and consent to presidential nominations. To cover these periods, the President is authorized to make recess appointments that are needed to keep government operating effectively. This provision was adopted at the Constitutional Convention without a dissenting vote and with virtually no record to fix its intent and scope.

The vast majority of Presidents have made use of recess appointments. The vast majority were to fill civil service or other senior executive level positions. However, recess appointments have also been used to appoint judges and this is where much of the controversy arises.

Since the first judicial recess appointment made by President George Washington, more than 300 have occurred, including several Justices to the Supreme Court.

As the Constitution indicates, a recess appointment is temporary, lasting only until the next Senate session. President Bush’s two appointments, William Pryor Jr. to the 11^th Circuit Court of Appeals and Charles Pickering Sr. to the 5th Circuit Court of Appeals will serve until January 2005 after which their appointments will lapse unless they are confirmed by the Senate.(They could theoretically be reappointed during another recess but that would be unprecedented.)

In most cases recess-appointees have not been controversial. Approximately 85 percent of all recess-appointees have subsequently been confirmed by the Senate.[1]

While often used, the power of a President to appoint judges during a recess has just as often been challenged. A 2001 analysis of judicial decisions and Attorney General and Comptroller General opinions by the Congressional Research Service concludes, “the President’s use of recess appointments for federal judges remains an unsettled constitutional issue.”[2]

Two major arguments have been raised to limit the ability of Presidents to make recess appointments. One deals with the definition of the word “recess”. Some constitutional scholars argue that in the early years of the Republic recesses lasting many months were common, before transportation improvements shortened the trip back home and mid-session breaks were introduced.

In 1901 Attorney General Philander Knox advised President Theodore Roosevelt that a recess constituted the “period following the final adjournment for the session”. He added, “Any intermediate temporary adjournment is not such a recess, although it may be a recess in the general and ordinary use of that term.” Twenty years later the Justice Department concluded that an adjournment in the middle of a session, from August 24 to September 21, was of sufficient duration to permit recess appointments by the President. However, the Attorney General cautioned, if a President could make recess appointments during an intrasession adjournment from August 24 to September 21, “does it not necessarily follow that the power exists if an adjournment for only 2 instead of 28 days is taken? I unhesitatingly answer this by saying no.” The term recess requires “a practical construction.” When the Senate adjourns for two days, it remains in session. “Nor do I think an adjournment for 5 or even 10 days can be said to constitute the recess intended by the Constitution.”[3]

After President Bush’s appointment of Charles Pickering Sr. during a 10 day Senate recess in February Senator Ted Kennedy(D-MA) indicated he would ask the 11^th Circuit Court, where Pryor was seated, to rule on whether a l0 day adjournment could be defined as a Constitutional recess with respect to Article II.

The second argument against judicial recess appointments involves another part of the Constitution, Article III which states, “Judges, both of the supreme and inferior courts, shall hold their offices during good behavior and shall receive a compensation which shall not be diminished during their continuances in Office.” Life tenure and salary guarantees were designed so that those who appear before a federal court can be sure the judges are immune from political pressure. Judicial independence was one of the most important attributes of federal judiciary and one that differentiated it from many state benches.

Federal judges have life appointments unless impeached but recess appointed judges do not. That raises an issue that has been adjudicated twice in the federal courts. Each time the plaintiff was a person who had been convicted by a court on which a recess appointed judge sat and said that since that judge was still subject to confirmation by the Senate the defendant was not guaranteed an impartial judge by the terms of the constitution.

A three judge panel of the Ninth Circuit Court in U.S. v. Woodley(1983) agreed. The recess appointments of judges “offend the explicit and unambiguous command of article III that the judicial power be exercised only by those enjoying life tenure and protection against diminution of compensation.”[4] A majority of the Court voted to rehear the case with all of the 11 judges participating (en banc). The full court ruled in favor of judicial recess appointments 7-4.

The four dissenters argued there is an inherent constitutional conflict between the broad language of the recess appointments clause and the judicial independence language in Article III. One had to give way. To them, judicial independence was more important than administrative efficiency.

The Congressional Research Service noted that since the 1960s Presidents have restricted their use of judicial appointments. “As a result of the controversy over the Eisenhower recess appointments of Warren, Brennan and Stewart there appears to be a political agreement that the President should not use recess appointments for Justices of the Supreme Court.”

Between 1969 and 2000 there were only two judicial recess appointments to lower federal courts. On December 31, 1980 President Carter appointed Walter Heen to be a district judge in Hawaii. On January 12, 1981 President Reagan withdrew Heen’s nomination. Heen continued to sit on the district court until December 16, 1981, when the first session of the 97^th Congress ended. The Congressional Research Service(CRS) notes that, “After President Carter’s appointment of Judge Heen, there seemed to a similar agreement for lower court judges.”

On December 27, 2000 President Clinton announced the recess appointment of Roger L. Gregory to the Fourth Circuit. The CRS notes that because of that action “the dispute over recess appointments for district courts and the federal circuits has been rekindled.”[5]