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September 15, 2003
CONTACT: David Fish
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Here Comes the Judge!
Recess Appointments Would Spur Constitutional Debate, May Says

WASHINGTON, D.C. - Presidents from George Washington to Bill Clinton have made recess appointments to the federal judiciary, including Supreme Court justices. Indeed, there have been over 300 such appointments. So why shouldn’t the current president follow suit? Randolph J. May, senior fellow at The Progress & Freedom Foundation, argues in “Checkmate in the Judges Game?” that, with the Senate now mounting filibusters to stop votes on two of President Bush’s nominees, “a few recess appointments will provoke a constitutional dialogue in the country that can actually contribute to the nation’s health.”

In May’s regular column in Legal Times, the constitutional scholar says President Bush should “promptly announce that if the Senate fails to vote on the nominations of Priscilla Owens and William Pryor Jr. before it leaves town, he will give them recess appointments.” And he should try to convince Miguel Estrada, who last week withdrew his nomination after more than a two-year wait, to accept one as well. May believes the ensuing political firestorm would require President Bush to explain to the nation why, in his view, his nominees are well-qualified, why he believes they are not the “judicial extremists” his Democratic opponents claim them to be, why circuit court judges are not free to ignore Supreme Court precedent in a system governed by the rule of law, and how he views the Senate’s proper advice and consent role and filibusters of judicial nominees.

Both the 2nd and 9th circuits, the only two appeals courts to consider the issue, “dismissed arguments that the Article II recess appointment power does not encompass Article III judges,” May writes. If President Bush were to make recess appointments, May understands that a political firestorm would be ignited. But he concludes: “In a government that must ultimately 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.”

The Progress & Freedom Foundation is a market-oriented think tank that studies the digital revolution and its implications for public policy. It is a 501(c)(3) research & educational organization.



The Progress & Freedom Foundation