Ignoring Advice and Consent? the Uses of Judicial Recess Appointments

By Graves, Scott E.; Howard, Robert M. | Political Research Quarterly, September 2010 | Go to article overview
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Ignoring Advice and Consent? the Uses of Judicial Recess Appointments


Graves, Scott E., Howard, Robert M., Political Research Quarterly


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

Article II, Section 2, of the U.S. Constitution establishes that the president nominates the justices of the Supreme Court as well as "all other Officers of the United States by and with the advice and consent of the Senate." While there has been significant debate as to the meaning of "advice and consent," clearly it encompasses the right of the Senate to approve presidential nominations by a majority vote of the legislative body. The reason for this is argued by Alexander Hamilton, who wrote that Senate approval "would be an excellent check upon a spirit of favoritism in the President and . . . prevent the appointment of unfit characters" (Rossiter 1961, 457).

Article II, Section 2, also gives the executive the 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 purpose of the recess appointment clause is clear-it allows the executive to keep the operations of government running even when the Senate is not in session and thus is unable to confirm presidential appointees. However, this clause also appears to upset the pristine formulation (Pyser 2006) of separated powers by allowing the president to bypass the Senate and appoint judges without any oversight, not to mention the lack of advice and consent.

While many scholars (Buck et. al. 2004; Cardozo Law School Symposium 2005) have considered the propriety or constitutionality of recess appointments to the federal judiciary, we seek to answer the simple yet intriguing questions of why and under what circumstances presidents use this recess appointment power. Given that most recess appointees are usually confirmed, why avoid an initial vote in the Senate to appoint a judge just for the remainder of the congressional session? How does such a clause function in an age of instantaneous communication and speedy travel? We also address the question of whether presidential use of the recess appointment power has changed over time in response to changes in the relationship and power of governmental branches as well as changes in the nature and circumstances of senate recesses. To answer these questions, we examine all incidents of judicial recess appointments from George Washington in 1789 to George W. Bush in 2004.

These are important questions because the use of the recess power, like other unilateral powers vested with the president, can upset the carefully calculated separation of powers envisioned by the framers. In particular, the abuse of this power can result in presidential favoritism or judges deemed "unfit" by a majority of senators. Two scholars of judicial appointments noted recently that President Clinton's recess appointment of Roger Gregory to the Court of Appeals for the Fourth Circuit was the first recess appointment to the judiciary since 1980 (Epstein and Segal 2005, 81). Unlike most other unilateral presidential powers, judicial recess appointments are one of the few areas of politics that affect all three branches of government. They can shift power over the third branch away from the Congress and toward the executive.

We explore under what political and institutional circumstances a president is likely to make a judicial recess appointment.

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