Recess Appointments of Judges
From George Washington forward, quite a history
The topic of recess appointments of judges has been popping up here. My most recent post was on the battle over George W. Bush’s nomination of Charles Pickering to the Fifth Circuit, which ended in Bush’s recess appointment of Pickering. I’ve also written about Bush’s decision to nominate Roger Gregory to a Fourth Circuit seat in the immediate aftermath of Bill Clinton’s recess appointment of Gregory. And I’ll soon be turning to the filibuster of Bush’s nomination of William H. Pryor Jr. to the Eleventh Circuit, which filibuster led Bush to recess-appoint Pryor.
So I figured that I would take a deeper look at the history of recess appointments of judges. I found the results of my research more interesting than I expected, and I hope you will too.
Did you know that some 300 federal judges, including a dozen or so Supreme Court justices (the precise number is contested), have been recess-appointed? Are you curious to learn who was the only recess-appointed justice not to be subsequently confirmed? (Hint: He was a chief justice.) Did you know that Earl Warren delayed the conference vote on Brown v. Board of Education for three months until he had shed his status as a recess appointee? If these questions interest you, there is much more in this post that you will enjoy.
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I’d like to think that this doesn’t need to be said, but recent experience suggests otherwise: Some folks who misunderstand my critique of President-elect Donald Trump’s reported—but perhaps now abandoned—plan to try to force the Senate into recess in order to blanket recess-appoint his Cabinet officers seem to think that I regard all recess appointments as illegitimate. That is not my position. Neither the large number of recess appointments of judges throughout American history nor the much larger number of recess appointments of executive-branch officials bears on my objections.
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Let’s start briefly with the Constitution. Pursuant to the Appointments Clause (Article II, section 2, clause 2), the ordinary means by which a federal judge takes office involves three steps: the president submits a nomination to the Senate; the Senate, exercising its “Advice and Consent” role, confirms the nomination; and the president makes the appointment. The appointed judge has lifetime tenure: Under Article III, federal judges “shall hold their Offices during good Behaviour”—in short, for as long as they wish, unless they are removed via impeachment and conviction.
The Recess Appointments Clause (Article II, section 2, clause 3), which immediately follows the Appointments Clause, provides a limited alternative to it, both for executive-branch and judicial nominations. The Recess Appointments Clause states:
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.
So a president, pursuant to this provision, may unilaterally recess-appoint a person to a judicial vacancy that “happen[s] during the Recess of the Senate,” but that recess appointment “shall expire at the End of [the Senate’s] next Session.”
To sweep with a very broad brush: Over time, and generally in the context of recess appointments to executive-branch positions, presidents have expanded their view of their recess-appointment authority. They have taken the position that the phrase “the Recess of the Senate” is not limited to an intersession recess (a recess between formal sessions of the Senate) but also includes an intrasession recess (a break in the midst of a session). They have also taken the position that, in order for a vacancy to “happen during the Recess of the Senate,” it need not arise then; rather, a vacancy that arises before the recess and continues into it “happen[s] during the Recess of the Senate.”
In its ruling ten years ago in NLRB v. Noel Canning (2014), the Supreme Court, by a vote of 5 to 4, embraced these two expansions (even as it also concocted a limit that a recess shorter than ten days is presumptively too short to trigger the recess-appointment authority). Justice Breyer wrote the majority opinion. Justice Scalia (joined by the Chief Justice, Justice Thomas, and Justice Alito) vigorously rejected the two expansions.
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Let’s now turn to historical practice on recess appointments of judges. I here draw heavily on a survey published by the Federalist Society in 2004, just before Bush’s recess appointment of Pickering, and co-authored by (now-Fifth Circuit judge) James C. Ho and four other young lawyers.
According to the survey, presidents “have made more than 300 recess appointments to the federal judiciary.” The practice began at the very beginning: “During recesses of the First Congress, President Washington made three recess appointments to the federal district court.” During his presidency, Washington “also made two recess appointments to the Supreme Court.” His successors followed suit: “The first five presidents made a total of twenty-nine recess appointments of judges.”
“Until the 1960s, every single President had used the Recess Appointments power to install judges except for two: William Henry Harrison, who died within a month of taking office, and John Tyler, who succeeded to the office upon Harrison’s death.”
The first president to hit double digits in the number of judges he recess-appointed was William McKinley, with 11. His successor Theodore Roosevelt nearly tripled that number (across two terms) to 30, and Calvin Coolidge had 25 in his six years in the White House. Harry S. Truman recess-appointed 39 judges, Dwight Eisenhower 27—including three Supreme Court justices—and John F. Kennedy 25.
There have been only four recess appointments of judges since Richard Nixon became president in 1969: Jimmy Carter’s recess appointment of Walter M. Heen to a district court in Hawaii, and the recess appointments of Gregory, Pickering, and Pryor.
After a president makes a recess appointment, the standard practice is for the president to submit a nomination of the individual to the Senate when it reconvenes. The Federalist Society survey reports that an “overwhelming percentage of recess-appointed judges—approximately eighty five percent by one count—have been subsequently confirmed for lifetime appointments by the Senate.”
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This Congressional Research Service report counts twelve justices who were recess-appointed. Let’s take a look at the early ones.
George Washington recess-appointed two justices, and both recess appointments involved John Rutledge. Washington had nominated Rutledge in 1789 as one of the initial justices on the Supreme Court, and the Senate promptly confirmed his nomination. But Rutledge resigned from the Court in March 1791—without ever having decided a case—in order to become chief justice of South Carolina’s highest court. So Washington recess-appointed Thomas Johnson to replace Rutledge, and Washington’s subsequent nomination of Johnson was promptly confirmed by the Senate. Johnson himself served barely a year on the Court before resigning due to poor health.
John Jay, the Court’s first chief justice, resigned in 1795 to become governor of New York. Washington recess-appointed Rutledge to replace Jay as chief justice. But the Senate rejected Washington’s nomination of Rutledge, evidently because of his opposition to the Jay Treaty. In a private letter, Thomas Jefferson complained:
“The rejection of Mr. Rutledge by the Senate is a bold thing; because they cannot pretend any objection to him but his disapprobation of the treaty. It is, of course, a declaration that they will receive none but tories hereafter into any department of the government.” [I have drawn this from the Federalist Society survey.]
Rutledge is the only recess-appointed justice not to have been subsequently confirmed and appointed.
Five of the next six recess-appointed justices replaced justices who died during a Senate recess: Bushrod Washington (appointed by John Adams in 1798); H. Brockholst Livingston (by Thomas Jefferson in 1806), Smith Thompson (by James Monroe in 1823); Levi Woodbury (by James Polk in 1845), and Benjamin Curtis (by Millard Fillmore in 1851).
The sixth was John McKinley, whom Martin Van Buren recess-appointed to a newly created seat on the Court in 1837. The McKinley appointment would appear to be an early (and overlooked?) example of a president’s exercising his recess-appointment authority with respect to a vacancy that arose before the Senate’s recess. A federal statute enacted on March 3, 1837—the last day of Andrew Jackson’s presidency—expanded the Supreme Court from seven seats to nine. Jackson nominated two individuals, John Catron and William Smith, to fill those seats, and the Senate confirmed those nominations on March 8, in the initial days of Van Buren’s presidency. But Smith declined Van Buren’s appointment. The Senate went into recess on March 10, and Van Buren issued a recess appointment to McKinley on April 22. So the vacancy to which Van Buren recess-appointed McKinley existed as of March 3, before the recess.
Abraham Lincoln’s recess appointment of David Davis in October 1862 is noteworthy. Lincoln appointed Davis to the seat that John Campbell resigned from in April 1861, in protest of Lincoln’s resupply of Fort Sumter. Campbell would go on to become Assistant Secretary of War for the Confederacy. Campbell’s seat on the Court had become vacant long before the Senate recess in which Lincoln appointed Davis. As Justice Scalia discusses in his opinion in NLRB v. Noel Canning, the Senate “reacted with vigor” against the “forced and unnatural” reading of the Clause that would deem Campbell’s vacancy to have “happen[ed] during the Recess of the Senate.”
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Nearly a century passed before the next three recess appointments of justices that CRS lists, all made by Dwight Eisenhower.
Eisenhower recess-appointed Earl Warren as chief justice in October 1953, one month after the death of Chief Justice Fred Vinson. It is striking to contemplate that Warren was still in his capacity as a recess appointee when Brown v. Board of Education was argued in December 1953. Indeed, the Senate did not reconvene until January 6, 1954. Eisenhower submitted his nomination of Warren to the Senate on January 11, the Senate confirmed the nomination on March 1, and Warren accepted Eisenhower’s commission on March 20.
Warren evidently deferred exercising his full powers as chief justice until he received his lifetime appointment. According to law professor Brad Snyder’s recent biography of Felix Frankfurter (Democratic Justice), the conference vote on Brown, which ordinarily would have occurred right after the argument in early December 1953, “was likely after [Warren’s] confirmation on March 1 and swearing-in on March 20 and could have been as late as” one of the conferences in April. Remarkably, Warren didn’t circulate a draft opinion in Brown to his colleagues until May 7 and 8. The unanimous decision in Brown was issued mere days later, on May 17.
Eisenhower recess-appointed William J. Brennan Jr. to the Court on October 15, 1956, upon Sherman Minton’s resignation from the Court. The Senate had recessed on July 27 and wouldn’t reconvene until January 1957. Running for re-election, Eisenhower was eager to strengthen his support among Catholics in the northeast. Recess-appointing Brennan six weeks before the election aimed at that goal.
The third justice whom Eisenhower recess-appointed was Potter Stewart in October 1958.
As CRS recounts:
President Eisenhower’s three recess appointments in the 1950s generated controversy. Concerns were expressed, among other things, over potential difficulties placed on Senators on the Judiciary Committee interrogating a nominee who already was sitting on the Court, and over the possibility of the judgments of a recess-appointed Justice being shaped by concerns with his eventual confirmation process. The possibility of further recess appointments prompted the Senate in 1960, voting closely along party lines, to pass a resolution expressing opposition to Supreme Court recess appointments in the future.
More precisely, the Senate resolution, adopted by a 47-38 vote largely along party lines, declared:
That it is the sense of the Senate that the making of recess appointments to the Supreme Court of the United States may not be wholly consistent with the best interests of the Supreme Court, the nominee who may be involved, the litigants before the Court, nor indeed the people of the United States, and that such appointments, therefore, should not be made except under unusual circumstances and for the purpose of preventing or ending a demonstrable breakdown in the administration of the Court’s business.
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Some have argued that reading the Recess Appointments Clause to allow a president to recess-appoint federal judges puts it in conflict with Article III. Article III vests the “judicial Power of the United States” in courts occupied by judges who “shall hold their Offices during good Behaviour”—in short, in judges with lifetime tenure. This guarantee of judicial independence is missing in judges serving recess appointments, so, the argument goes, Article III should be read to forbid recess appointments of federal judges (or, to be more precise, of federal judges exercising Article III power, as distinct from so-called Article I judges).
The three federal courts of appeals to address this argument have (in my judgment, correctly) rejected it. As the Eleventh Circuit explained in 2004:
The conflict between these equally important constitutional provisions is not irreconcilable: the temporary judges appointed under the Recess Appointments Clause are an exception to the general rule of Article III….
We accept that it was the intent of the Framers to keep important offices filled and government functioning. And while recess appointees may not have every bit of the protection for their independence that regularly confirmed Article III judges have, we accept the Framers thought that what might be intolerable, if prolonged, was acceptable for a relatively short while.
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It has been more than twenty years since the last recess appointment of a judge. The Senate’s recent practice of using pro forma sessions to avoid formally recessing for more than three days prevents recess appointments of any officials, executive-branch or judicial. So one can only wonder when the next recess appointment of a judge might be.