The recess appointment had obvious value for much of United States governmental history. To late eighteenth century minds contemplating the formation and maintenance of the federal government there was a clear and precise need for the recess power. Travel was limited and inconsistent at best, illness a constant, and life spans short. A white male infant born in the United States in 1850 could expect to live to about thirty-eight, while a ten year old white male child in the same year could expect to live to forty-eight, having survived the perils of childhood illnesses. Of course, the average life expectancy decreases further if one adds minorities to the equation. By 2004 life expectancy in the United States had increased for men to over seventy-five years.
Of course, change has not been limited to lifespan. Transportation and travel, demands for federal services and bureaucratic and institutional growth have all accelerated over the course of United States constitutional history. Animals and wind powered the dominant modes of transportation in 1787 as distance travel required either a horse or sail. Even the steamboat was several years in the future. The federal government and federal judiciary were small even as compared to contemporary European standards and miniscule as compared to the present day. Congress, as we saw in Chapter Two took lengthy and extensive recesses and was in reality a part-time legislature. The early congresses took intersession recesses of up to two hundred and fifty days in length and it was not until the Nineteenth Congress that intersession recesses stabilized to fewer than twenty-five days per session.
To the eighteenth century framer the recess clause was necessary and proper. Sudden death or illness was a constant, travel uncertain and Congress often would be out of session. The operation of the federal government, however small and limited, needed to continue and the chief executive needed the recess appointment power. The president thus had the ability to fill up governmental vacancies, including judicial vacancy, at least until the end of the congressional session.
As we have seen, efficiency concerns throughout the nineteenth century significantly impacted the incidence of judicial recess appointments. Congressional recesses and the length of such recesses were positively related to judicial recess appointments. When intersession recesses and the length of recess declined, the incidence of the use of judicial recess appointments likewise declined.
However, as we have also seen, even as efficiency reasons decline, the obvious reason behind the Recess Appointment Clause, presidents continue to make judicial recess appointments. Instead it became a strategic game, one that is used not by weak presidents, constrained by Congress, but by active strong presidents, confident of confirmation, and anxious to push their choices into a judicial position so the appointee can begin to issue rulings in support of the president’s policy positions. In addition, presidents are far more likely to make recess appointments early in the congressional session, ensuring months or even close to two years worth of rulings prior to the end of the appointment. In addition modern presidents are far more likely to make use of short “intrasession” recesses instead of the traditional, longer intersession recess to make the judicial recess appointment.
Many of these appointments have historical importance and most of the judges appointed during a recess were later confirmed, many enjoying long and distinguished careers. Thurgood Marshall, David Bazelon, William Hastie, Armistead Dobie, Griffin Bell, and William Hays were all appellate court recess appointees who went on to have distinguished judicial and legal careers. Hastie and Marshall’s appointments broke down racial barriers and one can speculate that the recess appointments of these men helped break racial barriers by allowing them to demonstrate their fitness for office. A nomination under normal circumstances might have induced sufficient opposition to prevent either from ever holding office.
Prominent Supreme Court justices were also appointed through the recess process. Fifteen Supreme Court nominees began their career through a recess appointment. Again several distinguished jurists took office through this power, including Oliver Wendell Holmes, Jr. and the first Justice John Harlan. In the modern era, President Eisenhower made use of the recess appointment power to seat Earl Warren, William Brennan, and Potter Stewart. Warren and Brennan in particular were extremely influential in the development the civil liberties and civil rights revolution.
However, as we have also seen, these nominees do not vote the same way before and after confirmation. While we do not have sufficient data to make firm conclusions on the modern Supreme Court justices, the evidence does show a difference in voting behavior. As shown in Chapter Three, Warren and Stewart voted differently during the time they sat as recess appointees, taking into account the partisan make-up of the Senate. In addition, Brennan and Stewart were less likely to cast a controversial vote pre-confirmation, and both Warren and Brennan were more likely to write discretionary opinions post-confirmation.
Our evidence for appellate court appointees was far more conclusive. In Chapter Four we demonstrate that recess-appointed judges did alter their voting pre-confirmation, based on their observed behavior afterward. Judges sitting by temporary recess appointment did not vote according to their ideological predispositions and did not appear to be responsive to the direction of their circuit or the Supreme Court. Rather, we contend, these judges are concerned with the impression that their actions on the bench make on the president who must renominate and support them and the Senate that must vote to confirm them. These judges also avoided liberal votes in cases subsequently appealed to the Supreme Court by the unsuccessful party and in cases raising civil liberties and civil rights issues during their recess appointment period.
In contrast, we found that these same judges’ voting behavior was very consistent with their ideology. We also found that the recess-appointed judges were much more responsive in their voting behavior to the ideological direction of the circuit in which they sat and the U.S. Supreme Court following their permanent appointment than they were beforehand. In a sense, judges sitting temporarily, awaiting the approval of the political branches to keep their jobs, are not full members of the judicial branch during that time, but visiting jurists on a “look-see” extended interview.
Finally our look at modern era recess appointees in chapter 5 with the full use of ideological as well as partisan controls confirms much of what we found in chapter 2’s historical overview. Modern strong, active presidents strategically use the recess appointment power to install judicial nominees “ahead of the curve” thereby ensuring a faithful nominee carrying out the policy preferences of the appointing president. In this chapter we found that an intrasession, as opposed to the longer more formal intersession, recess was more likely to lead to a judicial recess appointment. In addition, new seats and greater value of the recess appointment as measured by the length of time a commission would last increased the likelihood of a judicial recess appointment. In addition, presidents in the fourth year of office are found to be more likely to make a judicial recess appointment, reflecting the difficulty of getting the Senate to confirm an appointee in such circumstances. However, just as we found in chapter 2, a strong president is more likely to make use of the recess power than a weak president. In chapter 2 presidents with strong Senate majorities in the modern era were more likely to appoint a judicial recess nominee. In this later analysis we use ideological distance as the reference point. Here as the ideological distance between the president and Senate increases, the president is less likely to make a recess appointment.
In this case subsequent confirmation becomes tenuous and thus the value of the appointment itself lessens because the president might not have the benefit of the confirmed judge voting in sync with presidential preferences. In fact the cost of the recess appointment could mean the loss of presidential capital and good will for other projects and proposals. Thus with limited presidential resources and significant constraints a president with policy preferences at great distance from the Senate simply cannot afford the slight benefit offered by the judicial recess appointment.
The perhaps unintended irony of this process and modern strategic use of the recess appointed power is the lack of efficacy of the appointment, at least from the policy preferences point of view of the president. As our analyses show, there is considerable doubt that the recess appointee during the time of the recess actually provides the appointing president with any great policy benefit. Judicial recess appointees simply do not appear to vote their sincere policy preferences. The voting is quite constrained and mostly non-ideological. While one might argue that this forces the appointee to apply the facts and the law instead of substituting an ideological preference, it also means that the recess appointee is not voting in accord with the president who appointed him or her, at least until full Senate confirmation. Simply put, a conservative or liberal president who recess appoints a conservative or liberal judge will not have the benefit of ideologically conservative rulings unless and until the appointee is confirmed by the Senate.
This of course begs the question of the purpose or reason for continuing the use or threat of the use of the judicial recess appointment power. Before discussing this we recognize that any proposal to change or eliminate the recess appointment power would have to be in the form of a constitutional amendment. That would require two-thirds of each house of Congress to vote in favor of an amendment and approval of three-fourths of the states. Constitutional amendments are rare events, perhaps rightly so. Many scholars have noted the problems with various parts of the Constitution (Eskridge, Jr. and Levinson 1998) and such analyses are worthwhile in promoting necessary debate over constitutional reform, even if the proposals never result in the introduction of a congressional resolution.
Given our findings in the book, we would like to enter our small contribution to this ongoing debate. It is time to consider, at least for the judiciary, the need for the judicial recess appointment power. As efficiency justifications have declined over the past two centuries, so too have judicial recess appointments. In the age of a full time Congress, longer and healthier lives, rapid travel, and instantaneous communication, there is little compelling reason for the recess appointment power, at least for judicial appointments. Since we have not studied other presidential recess appointments, we remain neutral as to that question.
Some might argue that given extreme Senate delays of nominations the president needs the flexibility to use the recess power to keep the operations of the federal judiciary going. Judicial appointments have not kept pace with population growth and partisan wrangling over judges and judicial ideology has prevented the courts from attending to civil and criminal matters even though most of these cases raise little or no ideological controversy. The facts and law of the vast majority of cases coming before the lower courts are clear, and the decisions unanimous. One conservative law professor argued that given Senate obstruction and the ongoing War on Terror, vacant judicial positions endanger the nation by preventing the courts from issuing critical rulings and opinions on important legislative and national security matters (Williams 2002).
Even if one does not agree that the War on Terror is imperiled, there is some merit to this position on judicial business. The three most recent recess appointees, Roger Gregory, Charles Pickering, and William Pryor, were appointed to offices that had been vacant for more than ten, three, and four years respectively. These delays contrast dramatically with recess appointments of the twentieth century, where vacancies were measured in days, weeks, or at most months rather than years. Thus there are very real differences between the nineteenth and the twenty-first centuries. However, there are still arguments to be made in favor of the recess appointment power on efficiency grounds. Combustion engines have replaced horse power, but partisanship affects judicial appointment politics profoundly, and the nation suffers from a lack of seated judges. Hence, one could claim that there is, especially in times of national emergency, a pressing need for the president to use the recess appointment power to appoint federal judges.
However, this sentiment ignores both political reality and remains an unproven empirical assertion. Empirically unmet judicial positions due to partisan wrangling has now occurred at least over several presidencies, yet those efficiency reasons are neither the reasons cited by the nominating presidents for the recess appointments, nor do these new efficiency reasons seem to be supported by our data and analyses. Modern presidents think and use the recess appointment power in a strategic ideological fashion. Efficiency concerns even in an age of a “global war on terror” are secondary if though of at all.
Perhaps more importantly are the judicial independence concerns. Whatever one thinks about judicial rulings, whether one agrees with former Attorney General Edwin Meese’s now famous assertion that “. . . it seems fair to conclude that far too many opinions are policy choices [rather] than articulations of constitutional principle” (1986), judicial independence is bedrock of the federal judicial system. Whether it is for the protection of minority rights or viewpoints or freedom from oversight by the electoral majority and elected officials, in our system the third branch enjoys virtually complete independence from presidential and congressional interference.
For better or worse, that leaves federal judges free to vote their preferences or use some standard or the facts and the law or some combination of all three as guidelines for voting and opinions. However, recess appointees do not have that freedom and the data and analysis shows that they do not vote their preferences and thus do not enjoy the same freedom as the other judges in our system.
This means that the potential for a ruling from a recess-appointed judge and a judge confirmed by the Senate can be very different, and certainly this was not contemplated by the framers when they set the parameters for Article III judges and at the same time allowed the president to appoint judges through the recess power.
It is this confirmed limitation on judicial independence that is the most troubling aspect of the modern use of the recess power. The voting behavior of the recess judge differs markedly from the confirmed appointee. Justice varies by the type of judge and that is not tolerable.
Thus as efficiency justifications have diminished to practical nonexistence and as we learn of the differences in voting behavior one can make a strong argument that the recess appointment power, at least as it pertains to the judiciary, is no longer necessary. Of course, that would require a constitutional amendment and we have already noted the difficulty, if not impossibility of such an amendment. The fate of recess appointments rests with the political branches.
Our theory and results predicts that a president with a strong partisan majority in the Senate and one who also enjoys ideological compatibility with the Senate is more likely to make use of the recess appointment power. Thus if such a political situation emerges over the next several years the possibility exists for greater use of the recess power. Divided government has prevented this for many years. However, our theory and results also predict that the voting record of the recess appointee might vary significantly during the recess period from the preferences of the president. Thus a strong president might use the power, but the president might be very disappointed with the results.