On April 9, 2003, President George W. Bush nominated William H. Pryor, Jr. to the United States Court of Appeals for the Eleventh Circuit. His confirmation stalled in the Senate when interest groups objected to his views on various matters. With the nomination languishing in the United States Senate, Congress adjourned for twelve days in mid-February, 2004, taking advantage of the Presidents’ Day holiday weekend. During the congressional recess period, President Bush used his recess appointment power to install Pryor as judge, thus bypassing the confirmation process in the U.S. Senate. Pryor then resigned his position as attorney general for the state of Alabama and took his judicial oath for a term lasting until the end of 2006 when the next Congress begins.
The Senate eventually confirmed Pryor as a judge. However, before his confirmation, plaintiffs challenged the authority of the president to make this type of recess appointment. In Evans v. Stephens, 387 F.3d.1220 (2004), a divided en banc Eleventh Circuit rejected the plaintiffs’ contentions and, with majority and dissenters differing on the plain meaning of the United States Constitution, upheld the appointment of their colleague, Judge Pryor.
The case sparked a vigorous debate within the court, with both sides offering similar theories of constitutional interpretation. Writing for the majority, Chief Judge J.L. Edmondson relied on text, intent, historical practice, and precedent to support the constitutionality of the appointment. He noted that the Constitution specifically says that “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,” and that vacancies refer to “Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are note herein otherwise provided for, and which shall be established by law.” The plain meaning of this clause was that the president is allowed to make temporary recess appointments to these offices, including all Article III courts such as the United States Circuit Courts of Appeals, without Senate approval.
Moreover, the court held that the phrase “the Recess of the Senate” does not limit the president to intersession as opposed to intrasession recesses. There is no language referring to any minimum time in these clauses, and presidents have several times made appointments during intrasession recesses even shorter than that in which the Pryor appointment was made.
There were two dissents to Chief Judge Edmondson’s majority opinion. The first, by Judge Rosemary Barkett, challenged the interpretations of the Recess Appointment Clause proffered by the majority, highlighting the difficulty of interpreting the text of a document that is more than two hundred years old. Judge Barkett challenged the majority’s assertion that where the language is susceptible of different interpretations, the court should defer to historical practice and the preferences of the other branches of government. Barkett argued that the intent of the framers, as evidenced by Alexander Hamilton in the Federalist Papers and Justice Joseph Story’s early nineteenth-century treatise, was that the purpose of the Recess Appointment power was to enable the President to fill vacancies when the Senate was not able to act on the appointments, so that the operations of government and the administration of justice could be furthered. Thus, the Recess Appointment power was meant only for intersession, not intrasession, recesses. Otherwise, Judge Barkett argued, there would be nothing to prevent the President from repeatedly circumventing the Senate’s advice and consent role.
In another dissent, Judge Charles R. Wilson was concerned with the risk to public confidence. As Judge Pryor had participated in almost three hundred appeals and authored over forty published and non-published opinions, granting the motion would imply that Judge Pryor was not qualified to sit on these other matters because he was not properly appointed, but denying the motion might lead to a questioning of the motives of the judges in that the court was more concerned with protecting a colleague than advancing the administration of justice.
The case highlights the difficulty of recess appointments. The majority and the Barkett dissent differed on the interpretation of language, text, intent, historical practice, and even precedent, but of course as the majority noted, this was not the first case of a recess appointed judge, nor the first case to challenge such an appointment.
An earlier case, United States v. Woodley (726 F.2d 1328 (9th Cir. 1982) challenged the rulings of a recess appointment of Walter Heen by President Jimmy Carter to the U.S. District Court for the District of Hawaii. Judge Heen then presided over the trial and conviction of Janet Woodley on drug charges. The Ninth Circuit analyzed the inherent tension between the President’s recess appointment power under Article II which 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” and the attributes of judicial independence incorporated into Article III. It held that “only those judges enjoying Article III protections may exercise the judicial power of the United States” and vacated the lower court decision. According to the court, “[a] judge receiving his commission under the Recess Appointment Clause may be called upon to make politically charged decisions while his nomination awaits approval by popularly elected officials. Such a judge will scarcely be oblivious to the effect his decision may have on the vote of these officials” (726 F.2d 1328 p. 1330, 1982). When a recess appointee hears a case, he or she does not have a permanent appointment, and whether the appointee receives tenure is still contingent upon renomination by the President and confirmation by the Senate (Mayton 2004).
Although the Ninth Circuit then reheard the case en banc and reversed, this was not the first time the idea that unconfirmed judges might be subject to unacceptable political pressures was broached. President Eisenhower ended a fifty-one-year-old informal moratorium on appointing Supreme Court justices through the Recess Appointment Clause with the appointment of Earl Warren as chief justice in 1953. Following the appointment, Professor Henry Hart objected:
Governor Warren cannot possibly have this independence if his every vote, indeed his every question from the bench, is subject to the possibility of inquiry in later committee hearings and floor debates to determine his fitness to continue in judicial office. . . . The point is not what Governor Warren and his friends will think about his disinterestedness but what defeated litigants will think (Mayton 2004, 537).
Many of these concerns were highlighted with the twin recess appointments to the Federal Circuit Courts of Appeals by President George W. Bush (Bashman 2004). One was of the aforementioned William H. Pryor, who later was confirmed by the Senate. A slightly earlier recess appointment was that of Charles Pickering to the Fifth Circuit Court of Appeals (Lewis 2004). Pickering, a long time Federal District Court judge in Mississippi, was nominated by President Bush to the Circuit Court in 2002, and again in the new Congress that started in 2003. Pickering’s nomination, like the nomination of Pryor, stalled in the Senate. Pickering’s critics, in the Senate and elsewhere, were troubled with his lack of support for abortion rights. However, the most damaging allegation arose from his seeming indifference, if not hostility, to civil rights. Senators and other critics questioned Pickering’s record in this all important issue area. They noted that he has been critical of the Voting Rights Act of 1965, had seemingly gone out of his way to reduce the sentence of a man convicted of burning a cross, and critics also pointed to a law review article he wrote more than forty years ago suggesting ways to amend Mississippi’s law banning interracial marriages so that it would pass constitutional muster. While Pickering repudiated the article and supporters argued his strong record of racial conciliation and strong support from the African American community in Mississippi, these allegations provided enough ammunition for the Senate to fail to vote on his nomination (King 2004).
During this period, several conservative commentators urged President Bush to make greater use of the recess appointment power, both for judicial appointments and for other positions in the executive branch of government. For example, one proponent of the recess appointment power accused Senate Democrats of instituting a “left-biased ideological litmus test for judges” (Williams 2002), and noted the high number of judicial vacancies. This commentator went on to argue that given the ongoing war on terror, such absences constituted an emergency, and this type of emergency is precisely the reason the framers designed the recess appointments clause. Others noted how President Clinton had used the recess appointment power to overcome Republican Senate opposition and nominate Roger Gregory as the first African American to sit on the United States Court of Appeals for the Fourth Circuit (Harrison 2003).
Finally, President Bush used his recess power to appoint Pickering in January of 2004 to the Court and then one month later appointed William Pryor. The Pickering and Pryor appointments received both praise and criticism. Many of the critical comments came from Democratic members of the Senate. Conservative commentators, on the other hand, praised the appointment arguing that Pickering and Pryor had been the victims of vicious personal attacks and were well qualified to be appellate court judges (Harrison 2003). In fact, many conservative organizations and individuals urged President Bush to make many more recess appointments to the judiciary.
However, under a deal worked out with Democratic senators, President Bush agreed to forego future recess appointments in return for the Senate agreeing to ratify twenty-five out of thirty controversial judicial nominations pending in the Senate (ABA report 2007, York 2004). Eventually, of course, the Senate confirmed Pryor’s appointment, as it earlier confirmed the appointment of Roger Gregory. Pickering, unlike Pryor, withdrew his nomination in December 2004 when it was clear the new Senate would still refuse his confirmation, thus ending his tenure on the Court. This deal appeared to confirm the notion that President Bush was playing judicial poker with a weak hand (York 2004). Because of filibuster rules that, in effect, mandated sixty votes for confirmation, the president was unable to obtain the necessary votes for his judicial nominations. This senatorial weakness then led to the frustration and ultimate use of the recess appointment power, but with the accord, Bush agreed to suspend further use of the power for judicial appointments.
President Bush’s use of the recess appointment power for judicial candidates is neither novel nor new, although before the appointment of Roger Gregory by President Clinton the last recess appointment was by President Jimmy Carter of Walter Heen in December 1980. As the Evans majority and several commentators noted, since the beginning of the republic presidents have made over three hundred recess appointments to the federal judiciary including fifteen to the United States Supreme Court. Some presidents were more active than others. For example, President Eisenhower used the recess power to nominate Earl Warren in 1953, William Brennan in 1956, and Potter Stewart in 1958 to the Supreme Court. President Kennedy made twenty-three judicial recess appointments on the same day. These presidents are not alone in using judicial recess power in the twentieth century, in addition to Eisenhower and Kennedy, Theodore Roosevelt, Harry Truman, and Calvin Coolidge also made extensive use of the recess power and almost every president before the twentieth century made judicial recess appointments.
While one could debate the propriety or constitutional justifications for the very concept of the recess appointment power, the use of the recess power for judicial appointments presents a very different set of questions and issues than the use of the recess power for executive and independent agency appointments. As one scholar notes, there is conflicting evidence as to whether or not the framers ever intended the recess appointments clause to apply to the judiciary (Turley 2004). While it is not our purpose here to debate the constitutional underpinnings of the power to make judicial recess appointments, it is not hard to argue the difficulties of these types of appointments.
The judiciary, unlike the executive branch of government, is a separate and distinct branch of government. Hence recess appointments to the judiciary are separate and distinct from recess appointments to the executive branch of government. These appointments raise concerns that are highlighted by Professor Hart and the dissents in the above referenced cases. Such appointments seem to contradict the very ingrained notions of judicial independence, separation of powers, and the delicate balancing of majoritarian institutions such as the Congress, the presidency, and an anti-majoritarian institution such as the federal court system. While we do not expect courts to bow to the will of majority, in practice they reflect public opinion because they represent a collective choice of the nation’s elected officials, to wit, the president and the Congress.
Given these concerns one begins to wonder why presidents use this power for the judiciary. We start with the notion that presidents, like legislators, and even judges, are rational. That is, presidents are purposeful, goal-seeking actors. In economic terms they seek to increase their utility. In political terms they seek to increase their power and policy preferences. We assume that presidents want to increase their power at the expense of Congress and conversely that Congress seeks to increase its power at the expense of the president.
All else being equal Congress and the presidency are two branches that framers intended to check and balance the power of each other. The federal court system becomes one way for each branch to shift and move both power and policy preferences. This is not to say partisan politics and shared policy preferences do not play a role in institutional separation of powers schemes. Shared preferences and party often unite the large blocs of Congress and the president, and enable each to overcome institutional differences and blunt a drive for institutional power.
There is an obvious, albeit temporary, gain in policy preferences. A president is able to get a (presumably) ideologically compatible judge on the bench immediately issuing rulings that the president favors. Those in Congress who support the president’s and the nominee’s policy positions might support the use of a judicial recess appointment particularly where it appears a minority of the Senate using the institutional structure of the filibuster thwart the preferences of the majority.
However there are significant costs. The president does not make a lifetime appointment. Instead the appointment only lasts until the end of the current congressional session. Thus the policy gain might be lost in a relatively short span of time. Further, the use of such powers antagonizes many in Congress, perhaps even those who support the nomination. The recess appointment, without presence of some sort of an emergency, clearly intrudes on the constitutional prerogatives of the Senate. As one aforementioned story relates, President Bush had to agree to forego the use of the recess power in order to obtain consent for the Senate to move on many of his other judicial nominations. To some, this demonstrated the president’s weakness. Rather than serving as a source of source of authority for a president lacking political strength, recess appointment of judges can actually thwart presidential initiatives and expose his vulnerability. The power to appoint judges unilaterally serves the president’s utility better as a chip to be bargained away in exchange for legislative cooperation.
Given the consequences of such appointments to judicial independence, separation of powers, and the balance of presidential, executive, and judicial power, the use judicial recess appointments brings into question both age-old and modern questions of constitutional authority, intergovernmental relations, and inter-branch interaction. The purpose of this book is our attempt to analyze and answer some basic questions in reference to judicial recess appointment process.
Thus in this book we seek to answer several simple yet intriguing questions. We begin by examining appointments over time. We address questions of change in the use of the power as technology changes over time. For example, does the recess appointment power make any sense in the modern world, and has presidential use of the recess appointment power has changed over time? Clearly the use of the recess appointment power in the eighteenth and nineteenth centuries had obvious value. In eras of limited transportation and difficult communication the ability of the executive to keep the operations of government functioning had obvious practical value. Congress did not sit all year, and before the invention of the telegraph, the post was the primary means of communication. Transportation and communication depended upon the speed of a horse and rider. The modern era, however, brings instantaneous communication and rapid travel. Have these developments changed the nature and use of the recess power?
We also answer broad questions on the use of the power: why and under what circumstances do presidents use this recess appointment power? How successful are the presidents in appointing judges with similar policy preferences? How successful are these presidents in obtaining Senate confirmation for these initially recess appointed judges? We pay special attention to the modern era with our ability to use up to date and sophisticated measures of voting, ideology, and policy preferences.
We also pay attention to whether or not the independence of recess appointees is compromised. What does a recess appointment mean for the judges who hear and decide cases while recess appointees? Do recess appointees vote differently when they sit under the recess appointment than when they sit after confirmation? Do they pay more attention to Senate preferences or the preferences of the Senate? Are they likely to shy away from issuing opinions or joining in on controversial cases? Are they less likely to dissent or concur? Is the behavior of the recess appointee to the United States Supreme Court different from the behavior of the recess appointee to a lower court?
We argue that this examination of the recess appointment power and the answers to these questions about judicial recess appointments is both timely and important. The use of the recess power can potentially upset the carefully calculated separation of powers envisioned by the framers, shifting power away from one branch of government towards another. It has the potential to undermine judicial independence and undermining confidence in the ability of the judiciary to dispense fair and impartial justice.
We proceed with four chapters to help us analyze these questions and issues. The rest of the book proceeds as follows:
In this chapter we provide an historical overview of judicial recess appointees. We examine the incidences of judicial recess appointment in every Senate recess from 1789 to 2005. We find that there has been a change over time in the use of judicial recess appointments, namely that as efficiency justifications have declined over time for recess appointments, there has been a corresponding decline in the use of the recess power. However, we also 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 cautious and spare, especially in the modern era. Perhaps most surprisingly, and contrary to conventional wisdom, we find that strong presidents, not weak presidents, are most likely to take advantage of the recess appointment power and use it appoint judges, confident that such appointments will be confirmed.
We argue that Supreme Court appointments and other judicial appointments are analytically distinct and that voting patterns for Supreme Court justices are simply not comparable to the voting patterns of Appellate Court or District judges. When a recess-appointed judge hears a case, the appointee’s tenure is still contingent upon renomination by the president and confirmation by the Senate. This circumstance calls into question the independence of the judge. Do judicial recess appointees behave differently during the recess appointment than they do after receiving Senate confirmation? We compare the votes of three Supreme Court justices during their recess appointment tenure with a similar period following Senate confirmation. We find that the justices appear to have voted differently during the time they sat as recess appointees, taking into account the partisan make-up of the Senate. In addition, the justices were less likely to cast controversial votes and less likely to write discretionary opinions pre-confirmation. Thus, it appears that judicial recess appointments do threaten judicial independence.
Continuing on with our examination of voting behavior, in this chapter, along with co-author Pamela Corley, we compare the votes of post-war Appellate Court justices who were initially recess appointed during their recess appointment tenure with a similar period following Senate confirmation We explore this issue through the lens of separation of powers and judicial choice by examining judicial recess appointees who have later been confirmed by the Senate to full time Article III judicial positions. Specifically we compare the votes of seven modern recess appointed Courts of Appeals judges during their temporary appointment tenure with a similar period following Senate confirmation. We find substantial differences in pre- and post- confirmation voting. Using both different types of statistical models, we find that these judges are much more likely to vote in a liberal direction following confirmation in civil liberties and civil rights cases and much more willing to vote in contrast to Senate preferences following confirmation.
Since the 1960s, presidents have been very reluctant to bypass the advice and consent function of the U.S. Senate in order to temporarily place judges in judicial vacancies despite the consistent rise in the federal caseload and complaints of significant delays in confirmation during the same period. However, three controversial recess appointments in recent years, one by Bill Clinton in the last days of his presidency and two by George W. Bush in the face of minority obstruction in the Senate, were the first such appointments in over a decade and revived the controversy surrounding them. Both the occurrence and the circumstances of these appointments suggest the beginning of a new, more assertive use of the recess appointment power by presidents in the increasingly politicized activity of staffing the federal courts. We consider the relative influence of presidential, congressional, and judicial factors, including the continued institutionalization of the presidency, changes in the organization and work of the Senate, bargaining between the president and Congress, and the composition and output of the federal courts, on the incidence and timing of recess appointments to vacant seats in the federal courts. Our findings address why the practice declined so precipitously in the 1960s and what led to the apparent end of its dormancy in recent years. We conclude with some predictions about the role that recess appointments may play in the ongoing struggle between branches over the shape of the judiciary.
We argue that the Recess Appointment Clause, particularly as it pertains to the judiciary, is no longer either necessary or desirable. It is a constitutional clause whose time has passed, now ranking with other clauses that one scholar labels “constitutional stupidities.” In an age of instant communication, swift travel, and a full-time, professional legislature there is no compelling reason for judicial recess appointments. In fact our results showing the strategic use of such appointments by strong presidents to shift judicial ideology combined with the lack of independence exhibited by judicial recess appointees show the potential harm the recess power can cause in the modern era.
It is not our purpose to argue whether or the recess appointment power was meant to encompass judicial recess appointments. Nor is it our purpose to argue whether or not the phrase “recess” encompasses a short term “intrasession” break, or a longer and more formal “intersession” stoppage. No doubt these are important and interesting questions. While we offer suggestions and some normative ideas in our concluding chapter, in general, large scale theoretical and normative questions of constitutional interpretation, permissible exercises of executive power and the proper relationship of the president, the courts, and Congress are beyond the scope of this book.
We are political scientists, and our purpose is to examine and answer the above questions through empirical analysis. While much of our analyses and examinations are data driven and use various statistical models, one does not have to be a political scientist or familiar with statistical methodology to understand our arguments and our findings. In each chapter we offer explanations of our methods and our findings for the general reader. To be sure, those with greater understanding of the methodologies employed herein and who want to examine our methods and findings in greater detail will find all relevant information.