Saturday, February 21, 2004
By Steven Taylor

The ABAJournal eReport noted the following right after Bush used a recess appointment to place Pickering on the 5th Circuit Court of Appeals:

Beginning with George Washington, presidents have appointed more than 300 judges to temporary positions on the federal bench, with the majority going on to win confirmation and lifetime seats.

Which helps put the Pryor nomination in perspective to some degree.

It is worth noting that President Clinton made a recess appointment to a Circuit Court as well, but that the practice is not common:

Before Bill Clinton appointed Roger Gregory in 2000 to add a black judge to a previously all-white 4th Circuit, the last recess appointment was 20 years earlier when Jimmy Carter nominee Walter M. Heen was appointed to the district court in Hawaii.

However, it was more common around mid-century:

In a recent paper published by the Federalist Society, the history of judicial recess appointment is chronicled in detail. Among the 27 judges appointed by Dwight D. Eisenhower were Supreme Court justices Potter Stewart, William J. Brennan and Earl Warren. But after Kennedy appointed 25 judges during recesses, the executive branch began to shy away from the option.

The article cites a paper from the Federalist Society (in PDF) which details the history of recess appointments. It notes, for example, the following concerning the Supreme Court

Fifteen justices of the Supreme Court-including two Chief Justices-were first appointed by recess appointment. Other than Rutledge, all were subsequently confirmed by the Senate for lifetime positions. Recess appointees to the Supreme Court include Chief Justice Earl Warren and Justices Potter Stewart and William Brennan.

The article further notes that the constitutional origins of the action:

The Recess Appointments Clause of Article II, Section 2, provides that “[t]he 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.”

The main matter of controversy would be how long of a recess is long enough. The answer: not very long:

power. It seems to be undisputed that recesses lasting more than a month, such as the adjournment addressed by Acting Attorney General Walsh in 1960, are long enough.42 A 1992 Attorney General opinion found that an eighteen-day break is sufficient, citing an eighteen-day intrasession recess appointment made by President Reagan and a fifteen-day recess appointment made by President Coolidge.43 Although General Daugherty’s 1921 opinion concluded that ten days is probably too short,44 a 1993 Justice Department brief stated that recess appointments might be justified for any break in excess of three days.45 President George H.W. Bush appointed Thomas Ludlow Ashley to the Postal Service Board of Governors during a twelve-day recess,46 and President Clinton appointed James Hormel ambassador to Luxembourg during the Senate’s ten-day Memorial Day break.

The article is quite interesting for anyone interested in the process. The appendices have tables detailing the number and type of recess appointments made over time. A point of trivia: Truman holds the record for recess appointment to the federal bench with 39.

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3 Responses to “Background on Recess Appointments”

  1. Scott S Says:

    Thanks for the info. I dreaded researching it myself. Did so for filibusters last year.

    Anyways, Pryor is what I call a Trojan Horse. Although he has very religious and conservative beliefs, something the Dems despise, he has sworn he would uphold the law. And to prove this, he was the judge who presided over Roy Moore and the Ten Commandments case in Alabama. There, he probably sympathized with Moore, but upheld the law. Ultimately he had the 10C removed and Moore stripped of his robe.

    How can the Dems claim he’ll rule by his beliefs? There is no longer any argument against him except pure partisanship.

  2. Ira Says:

    A question that I have not been able to determine the answer to even after reading the article and the paper.

    Once the recess appointment comes back to the Senate for a vote, if the appointment is rejected, away he/she goes. However, what if there is no rejection of the appointment. I noted in the chart in Appendix C, either they were confirmed or appointment expired after failed nomination.

    Does a filibuster equal a failed nomination?

  3. Steven Says:

    Basically the process starts all over again, as the slot becomes vacant again when the recess appointment expires, which is at the end of the current congress. So if Pryor is re-nominated it is like starting from scratch, even though he will have temporarily served.

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