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. …