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Checkmate in the Judges Game?

For democracy's sake, President Bush should threaten a recess appointment, or two

by Randolph J. May
Legal Times, September 8, 2003

Quick! Name President Dwight Eisenhower’s three recess appointments to the Supreme Court.

C’mon, fess up. You didn’t know that Chief Justice Earl Warren (1953) and Justices William Brennan Jr. (1956) and Potter Stewart (1958) took their seats by virtue of appointments made during Senate recesses. Each was subsequently confirmed by the Senate, but not before participating in deciding cases during their recess service.

More recently, three weeks before leaving office, President Bill Clinton appointed Roger Gregory to the U.S. Court of Appeals for the 4th Circuit, after Gregory’s nomination had stalled in the Senate for six months.

So, here’s my not-so-modest—and admittedly politically risky—suggestion for President George W. Bush: Now that Congress is back from its August recess, he should promptly announce that if the Senate fails to vote on the nominations of Priscilla Owen and William Pryor Jr. before it next leaves town, he will give them recess appointments. And he should try to convince Miguel Estrada, who has informed the president that he wishes to withdraw his nomination, to accept a recess appointment too.

Estrada and Owen were both nominated, along with Roger Gregory, in May 2001 in Bush’s first batch of judicial nominations. Gregory was confirmed within three months, becoming the first African-American to sit on the 4th Circuit. More than two years later, both Estrada and Owen still have been denied confirmation votes, and, along with Pryor, have faced filibusters mounted by Senate Democrats.

A Good Firestorm

I understand that in today’s supercharged judicial nominations environment, recess appointments—which would allow Estrada, Owen, and Pryor to sit on the bench until the Senate either confirmed them or the next congressional session ended—will ignite a political firestorm stoked by Sens. Patrick Leahy of Vermont, Edward Kennedy of Massachusetts, and Charles Schumer of New York and their fellow Senate Judiciary Committee Democrats. I don’t purport to know how the politics would play out. But I do contend that if Bush believes his nominees are qualified for the bench and have been treated unfairly in the Senate, a few recess appointments will provoke a constitutional dialogue in the country that can actually contribute to our nation’s political health.

There is always the risk, and not a small one, that this tactic would further politicize the already overly partisan judicial nominations process. But we may already have reached the limits of nasty partisanship. There can be no doubt that many well-qualified men and women who would distinguish themselves as federal judges are discouraged from accepting nominations for fear of having to run the Senate gantlet. Witness Estrada’s bitter experience with the broken process.

If, in response to the political firestorm ignited by the recess appointments, Bush were committed to vigorously defending his action, the nation could benefit from the ensuing debate. The president would have to explain why, in his view, his nominees are well-qualified to be judges by virtue of their professional and personal attributes, why he believes they are not the “judicial extremists” their Democratic opponents proclaim them to be, and why circuit court judges are not free to disregard Supreme Court precedent in a system governed by the rule of law.

And the president would have to articulate his views concerning the Senate’s proper advice and consent role, and the degree of deference that he believes should be accorded a president’s nominations. He would have to explain the circumstances, if any, under which he thinks it appropriate for Senate filibusters to be mounted to deny judicial nominees up-or-down votes on their nomination.

Finally, he would be forced to explain why he believes recess appointments to Article III courts are proper in the face of the likely charge that such appointments compromise not only the Senate’s advice-and-consent role, but also the independence of the appointees who have not been granted life tenure by virtue of Senate confirmation. After all, it might be argued that a recess appointee may tailor his or her decisions to enhance prospects for ultimate confirmation.

My point here is not to argue in favor of specific nominees, or against the use of Senate filibusters to block an up-or-down vote on their nominations—although, based on what I know, I think that the nominees I’ve mentioned should be confirmed, and that the filibusters preventing votes on their nominations are inappropriate. Rather, my point is that because Bush surely believes they should be confirmed and are being treated inappropriately, he should escalate the fight for them in a way that will engage the American people in a constitutional dialogue.

Talk To the People

Some may argue that a spirited debate between the president and the Senate Democrats, and the defenders of each, concerning the issues of constitutional principle and philosophy involved in the nomination fights is too esoteric for the public to follow. I give the American people more credit, and see no reason to leave this debate to inside-the-Beltway pundits and the nation’s law professors.

Our democracy’s ongoing vitality depends on widespread understanding of our constitutional system by a broad swath of the American citizenry, especially in an era when we are absorbing so many immigrants from lands with far different political systems and constitutional cultures. Such understanding can be enriched when our elected leaders engage in serious debate about fundamental constitutional issues.

Of course, Bush should follow my suggestion only if he believes that the recess appointments are constitutional. It would not serve his interests, or the nation’s, to instigate a constitutional debate by acting in an unconstitutional manner. This is where some more constitutional history and precedent are useful.

Recess appointments of Article III judges are not a recent phenomenon. To the contrary, the practice dates from the republic’s earliest days. George Washington, who had served as president of the Constitutional Convention, made three recess appointments of federal judges in his first year in office. There is no evidence that his recess appointments to the Supreme Court of Justice Thomas Johnson (1791) and Chief Justice John Rutledge (1795) were challenged by any of the Founders then serving in his Cabinet or in Congress. Perhaps, most tellingly, by the end of 1823, during a period when most Founders were still alive, there had been five recess Supreme Court appointments, without engendering constitutional controversy.

All in all, there have been more than 300 recess appointments to Article III courts. (For more on the historical record, see the September 2001 paper, Recess Appointments of Federal Judges, by Louis Fisher of the Congressional Research Service, and the unsigned 1957 Stanford Law Review note “Recess Appointments—Constitutional but Unwise?”)

There has never been a challenge to recess appointments for federal judges to reach the Supreme Court. Both the 2nd and 9th circuits, the only two appeals courts that have considered the issue, have dismissed arguments that the Article II recess appointment power does not encompass Article III judges. (See United States v. Allocco (2nd Cir. 1962) and United States v. Woodley (9th Cir. 1985).)

Responding to the principal claim that a temporary appointee lacks the independence of a life-tenured Article III judge, Allocco stated: “This hypothetical risk must be weighed against the danger of setting up a roadblock in the orderly functioning of government which would result if the President’s recess power were limited.” To the same effect, the 9th Circuit, while acknowledging that a recess appointee theoretically may be subject to greater outside pressure than a confirmed judge, nevertheless concluded that it must “view the recess appointee not as a danger to the independence of the judiciary, but as the extraordinary exception to the prescriptions of Article III.”

Make no mistake. I am not advocating that Bush embark on a campaign of wholesale recess appointments. And I am not intimating that I know whether Owen, Pryor, and, especially now, Estrada even would accept such appointments. Certainly, the personal sacrifice involved, without any assurance of ultimate confirmation, could be substantial.

High-Stakes and High-Minded

What I am suggesting is that, if the nominees would agree, and if Bush is willing to take his case to the people, the heat generated by recess appointments would create the opportunity—indeed, necessity—for the president to lead an edifying dialogue. This high-stakes and high-minded discussion would concern the appropriate role of federal judges in our judicial system, including those who sit below the Supreme Court; preferred modes of constitutional interpretation; and the boundary that separates the “extreme” from the “mainstream” in our constitutional jurisprudence.

In a government that ultimately must stand or fall based on a shared understanding of constitutional values and the rule of law, more rather than less constitutional conversation is always a good thing.

Randolph J. May is a senior fellow and director of communications policy studies at the Progress & Freedom Foundation in Washington, D.C. The views expressed are his own and do not necessarily reflect the views of the foundation. He may be reached at rmay@pff.org. His column, “Fourth Branch,” appears regularly in Legal Times.

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