Ignoring Advice and Consent? The Uses of Judicial Recess Appointments

• Date: 01 September 2010
• DOI: 10.1177/1065912909333129
• Author: Robert M. Howard,Scott E. Graves
• Published date: 01 September 2010
• Subject Matter: Articles

Political Research Quarterly
63(3) 640 –653
Ignoring Advice and Consent? The
© 2010 University of Utah
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Uses of Judicial Recess Appointments
DOI: 10.1177/1065912909333129
http://prq.sagepub.com
Scott E. Graves1 and Robert M. Howard1
Abstract
The authors seek to answer the questions of why presidents use the power to temporarily seat federal court judges
during recesses of the Senate. The use of the recess power can upset the carefully calculated separation of powers
envisioned by the framers, shifting power away from one branch of government toward another. Examining every
judicial recess appointment from 1789 to 2004, the authors discover that presidents are conditionally strategic in their
use of the unilateral authority to appoint federal court judges during Senate recesses but that the use of this power is
careful and spare, especially in the modern era.
Keywords
public law, public courts, presidency research
Introduction
questions of why and under what circumstances
presidents use this recess appointment power. Given that
Article II, Section 2, of the U.S. Constitution establishes
most recess appointees are usually confirmed, why avoid
that the president nominates the justices of the Supreme
an initial vote in the Senate to appoint a judge just for the
Court as well as “all other Officers of the United States
remainder of the congressional session? How does such a
by and with the advice and consent of the Senate.” While
clause function in an age of instantaneous communication
there has been significant debate as to the meaning of
and speedy travel? We also address the question of
“advice and consent,” clearly it encompasses the right of
whether presidential use of the recess appointment power
the Senate to approve presidential nominations by a
has changed over time in response to changes in the
majority vote of the legislative body. The reason for this
relationship and power of governmental branches as well
is argued by Alexander Hamilton, who wrote that Senate
as changes in the nature and circumstances of senate
approval “would be an excellent check upon a spirit of
recesses. To answer these questions, we examine all
favoritism in the President and . . . prevent the appoint
incidents of judicial recess appointments from George
ment of unfit characters” (Rossiter 1961, 457).
Washington in 1789 to George W. Bush in 2004.
Article II, Section 2, also gives the executive the
These are important questions because the use of the
power to “fill up all Vacancies that may happen during
recess power, like other unilateral powers vested with the
the Recess of the Senate, by granting Commissions which
president, can upset the carefully calculated separation of
shall expire at the End of their next Session.” The purpose
powers envisioned by the framers. In particular, the abuse
of the recess appointment clause is clear—it allows the
of this power can result in presidential favoritism or
executive to keep the operations of government running
judges deemed “unfit” by a majority of senators. Two
even when the Senate is not in session and thus is unable
scholars of judicial appointments noted recently that
to confirm presidential appointees. However, this clause
also appears to upset the pristine formulation (Pyser
1Georgia State University, Atlanta
2006) of separated powers by allowing the president to
Corresponding Authors:
bypass the Senate and appoint judges without any
Scott E. Graves, assistant professor of political science, Georgia State
oversight, not to mention the lack of advice and consent.
University
While many scholars (Buck et. al. 2004; Cardozo Law
Email: polseg@langate.gsu.edu.
School Symposium 2005) have considered the propriety
Robert M. Howard, associate professor of political science, Georgia
or constitutionality of recess appointments to the federal
State University
judiciary, we seek to answer the simple yet intriguing
Email: polrhh@langate.gsu.edu.

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Graves and Howard
641
President Clinton’s recess appointment of Roger Gregory
Spaeth 1993), although at least for the Supreme Court,
to the Court of Appeals for the Fourth Circuit was the
political party matters less than ideology (Epstein and
first recess appointment to the judiciary since 1980
Segal 2005). On the whole, presidents are remarkably
(Epstein and Segal 2005, 81). Unlike most other unilateral
successful in pushing through their nominees and in
presidential powers, judicial recess appointments are one
finding ideologically similar justices (Segal, Timpone,
of the few areas of politics that affect all three branches
and Howard 2000), even if ideological concordance
of government. They can shift power over the third
between judges and presidents varies from president to
branch away from the Congress and toward the executive.
president, at least at the Supreme Court level. In short, a
We explore under what political and institutional
president seeks to increase his institutional power
circumstances a president is likely to make a judicial
through the appointment process. In a separation of
recess appointment. While conventional wisdom holds
powers system, an ideologically compatible judiciary is
that a politically weak president, lacking support in the
far more likely than not to support presidential
Senate, is more likely to use the recess power to avoid the
preferences (see Yates and Whitford 1998).
necessity of Senate approval, we find to the contrary in
To achieve the goal of moving the federal judiciary in
the modern era. We argue that politically strong presidents
the direction of their ideological preferences, presidents
are more likely than weaker presidents to make judicial
must make strategic choices for lower courts as well as at
recess appoint ments. In a separation of powers system,
the Supreme Court level (Massie, Hansford, and Songer
the recess appointment power allows a president to move
2004; Moraski and Shipan 1999). The Senate’s
the judiciary ideologically closer to his preferences, but
constitutional role of providing advice and consent to
this opportunity carries risks that political support can
permanent third branch appointments requires the
relieve. To demonstrate this, we assess the literature on
president to choose nominees who can garner sufficient
judicial appointments and judicial recess appointments.
votes for confirmation, either a majority under ordinary
Next, we offer a brief review of previous scholarship
circumstances or filibusterproof supermajorities under
of presidential power. Then, we present our data,
extraordinary conditions of conflict between the executive
methodology, and results of our study. Finally we offer
and the Senate minority, as observed recently.
our conclusions and suggestions for future research.
Presidents care about more than just eventual
confirmation, however. Timing is also important. Several
Judicial Appointments
scholars have shown that delay rather than outright
rejection is a key consideration for the president and a
While there has been little examination by political scien
tool for those opposed to the appointment in the advice
tists of judicial recess appointments, the nomination and
and consent confirmation process (Shipan and Shannon
confirmation process of the judiciary has received sig
2003; Binder and Maltzman 2002; Martinek, Kemper,
nificant scholarly attention. As several recent and classic
and Van Winkle 2002; Nixon 2001). Delay is the great
books on judicial appointments make clear, presidential
strategy of individual senators opposing the nominee
appointments to the federal judiciary have always been a
(Bell 2002). Holding up the appointment can serve
contentious process driven by political and ideological
several goals for those opposing the nomination. A
concerns, both at the Supreme Court (Abraham 1992;
sufficiently significant delay can destroy the nomination
Yalof 1999; Epstein and Segal 2005) and for lower courts
or leave the president exposed as weak (Shipan and
(Epstein and Segal 2005). Although there are other con
Shannon 2003; Nixon 2001). This can obstruct the
siderations, such as geographical balance; racial, ethnic,
president’s other legislative priorities. In addition, delay
and gender diversity; and senatorial courtesy, presidents
can hinder and deter the president from achieving policy
have consistently used the appointment power to nomi
goals by delaying the appointment of likeminded
nate judges who will rule in a manner ideologically con
ideologically compatible justices. Scholars have found
sistent with the preferences of the nominating president
that delay appears likely in times of divided government
(Abraham 1992; Yalof 1999; Segal, Timpone, and How
and also in times of ideological polarization within the
ard 2000; Epstein and Segal 2005). Some prominent
Senate and between the Senate and the president
scholars argue that ideological and political consider
(McCarty and Razaghian 1999; Bell 2002; Shipan and
ations and politicization have particularly increased since
Shannon 2003).
the presidencies of Ronald Reagan and George H. W. Bush
Nevertheless, appointments to the judiciary, unlike
(see, e.g., Goldman 1997).
the executive branch, can long outlast an individual
Republican presidents overwhelmingly appoint
presidency. The value of avoiding delay is...