Recess appointments and an independent judiciary.

• Author: Mayton, William Ty

Presidents Clinton and Bush have revived a quiescent executive power, that of recess appointments to the bench. In the last few days of his presidency Mr. Clinton made one such appointment. Following suit, Mr. Bush has now made two. All three appointments were of presidential nominees for whom Senate confirmation, either up or down, had been forestalled by parliamentary moves. For both Presidents the attractive feature of a recess appointment was that it placed their nominees on the bench without Senate confirmation. But because of this by-pass these appointments have been questioned, on political and constitutional grounds. This article is about the constitutional part of the debate. The constitutional issues examined are: first, whether present use of the recess appointments clause is so expansive as to exceed the power in fact granted by the clause, thereby infringing the senatorial prerogative of "advice and consent," and second, whether recess appointments to the bench infringe the personal right, as derived from Article III of the Constitution, to federal courts presided over by judges "free of political domination." This second issue, respecting the right to judges free of political domination, shows that recess appointments to the bench are a special case.

Considering that these issues of power and right interact so complexly, an overview seems useful, which view best starts by identifying the recess appointments clause and its purpose. The clause provides, "The President shall have 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." (1) The purpose underlying this power is evident. In 1789 and for ten sessions thereafter, intersession recesses of Congress averaged seven months in length. (2) During these several months important public offices might go vacant. In anticipation of these inopportune vacancies, the framers modified the standard of Senate confirmation to allow for temporary presidential appointments to fill them as needed. Today, however, recesses of the Senate are not seven months but four to five weeks. In this short time, a new session is just around the corner and in any event modern communications and transportation allow for special sessions of the Senate wherein crucial offices might be filled. Therefore, the urgency toward which the recess clause was directed is not today a factor. This is especially so respecting the bench, where other judges--by inter- and intracircuit transfers--can cover a vacated post.

In any event, the clause today often serves a purpose quite different from that of ensuring that the public service does not suffer due to a vacancy in office left unfilled while the Senate is dispersed and unavailable during its recess. Presently the clause is used to create a place-holder in office who may thereby gain a prescriptive advantage respecting that office. This possibility was in fact noticed early on, by Senator John Quincy Adams, Jr., as he wrote his father of a certain tactical advantage open to the President. "Provisional appointments," he wrote, might be made during a recess of the Senate, so that "when the Senate meet, the candidates proposed to their consideration are already in possession of the office to which they are to be appointed." (3) In this sense, Mr. Clinton may have made a politically astute move (as the New York Times put it) (4) in his recess appointment of Judge Gregory. By it he put in place, ahead of the incoming Bush administration, his own candidate. Somewhat similarly, the appointments by President Bush, of Judges Pickering and Pryor, may defuse the filibusters that keep these appointments from being voted on. These are the political possibilities of the clause. Safe to say, though, recess appointments for these reasons are not what the clause is about.

The second part of this overview is about whether the present use of the recess appointments clause exceeds the terms of the clause. These terms are that the President may fill vacancies that "happen during the Recess of the Senate." Vacancies that happen not during but before a recess--when the Senate is in session and available for confirmation--do not generally create the same urgency as vacancies that "happen during the recess of the Senate." However, recess appointments as they are made today--as in the case of Clinton and Bush's appointments to the bench--are usually for vacancies that did not happen while the Senate was in recess. Rather, the vacancy happens at some other time and then, usually after the Senate fails to fill the post by not acting on the President's nominee, the President places a nominee on the bench without that appointment and by a recess appointment. The scope of power issue raised by this practice is, of course, that the President has exceeded the power in fact provided by the text of the clause. However, in United States v. Allocco, which case is (improperly) viewed as the single, controlling authority here, the Ninth Circuit found that the plain terms of the clause had been modified by a certain "gloss of history." (5) While Allocco is itself weak on this point, the possibility remains that the terms of Article II have been levered out of their plain meaning by a concession on the part of Congress, a 1940 amendment to the Tenure of Office Act. But along with noting this possibility of concession, it is also correct to note that such claims of concession are disfavored. As explained by the Supreme Court, the appointment provisions of Article II "preserves ... the Constitution's structural integrity by preventing the diffusion of the appointment power":

Neither Congress nor the Executive can agree to waive this structural protection.... The structural interests protected by the Appointments Clause are not those of any one branch of Government but of the entire Republic. (6) This overview's third part is about rights derived from Article III of the Constitution. In this respect, assume that the President does indeed have the power to make a recess appointment, but consider the possibility of a check to that power by an assertion of right. There are two such rights. One is what case law speaks of as a public right, which is our collective interest in "the role of the independent judiciary within the constitutional scheme of tripartite government." (7) The "role" thus protected is the better capacity of a politically independent court to sustain the checks and balances feature of "tripartite government." I do not wish to understate this "public right" nor imply that it is not relevant to the case of recess appointments to the bench. After all, in reference to the structural guarantee this right embodies, the Supreme Court, in Nguyen v. United States, (8) recently vacated a federal court of appeals decision because the panel that rendered it included a judge who did not have the lifetime tenure that Article III requires. Nonetheless, Article III includes a different sort of right that is more pressing. This right is the "personal right" to "have claims decided before judges who are free from potential domination by other branches of government." (9) This right is in play in each and every case heard by a recess appointee, and is always highly visible, always so rightly owed, and always so clearly breached.

When a recess appointee hears a case, whether he or she gains a permanent appointment to the bench is yet to be determined; whether the appointee gains tenure is contingent upon renomination by the President and confirmation by the Senate. The recess appointee, then, is not freed from political pressure and therefore acts in the face of the personal right--as can be claimed by any party whose claim the appointee hears--to be heard by a politically independent judge. The startling prospect of an assertion of this right is that whether reached singly by a district court judge or jointly by an appellate panel, each and every judgment that includes a recess appointee stands to be overturned.

In recess appointments, the right to a judge freed of political domination first came before the courts in Ex Parte Ward. (10) In this 1899 decision the right was asserted but the Supreme Court would not hear it owing to now defunct jurisdictional grounds. Eighty-five years later in 1984, the right was heard and decided by the Ninth Circuit in United States v. Woodley. (11) In defendant's appeal from her conviction in a criminal case, the court on its own motion overturned the judgment against her because it had been rendered by a recess appointee, holding that because "[h]e lacks the essential attributes of an Article III judge, a recess appointee to the federal bench cannot exercise the judicial power of the United States." (12) However, on rehearing en banc, the circuit in a split decision reversed this initial decision and reinstated the defendant's conviction.

In a notable dissent to the en banc opinion, Judge Norris would have resolved the conflict between the recess appointments clause and Article III according to the canon that "[constitutional] principles" must be considered as "of equal dignity, and ... must [not] be so enforced as to nullify or substantially impair another." (13) Judge Norris explained that no significant impairment of the recess appointment is caused by excluding judges from its scope. Among other things, inter- and intracircuit transfers of judges, as provided by Title 28, alleviate immediate and acute problems caused by a vacancy on the bench. (14) In contrast, the independence of the judiciary is substantially impaired whenever a judge's work is subject to political review. A recess appointee's work is subject to such review and no human being can be oblivious of that. In these comparative terms, resolution of the conflict between the recess appointments clause and Article III was clear and certain: the Article III standard of a...