Howard J. Bashman's appellate columns, etc.

Questioning the Constitutionality of Recess Appointments to the Federal Judiciary

By Howard J. Bashman
Monday, March 12, 2001

On December 27, 2000, William Jefferson Clinton became the first President in two decades to use the power available under Article II of the U.S. Constitution to make a recess appointment to the federal judiciary. President Clinton's recess appointment of Roger Gregory to fill a longstanding judicial vacancy on the U.S. Court of Appeals for the Fourth Circuit proved newsworthy because Gregory became the first African-American judge on that court. The Fourth Circuit, which consists of Maryland, North Carolina, South Carolina, Virginia and West Virginia, has the largest African-American population of any circuit in the nation.

Although President Clinton's last-minute pardons have generated a great deal of controversy, his decision to make a recess appointment to the federal judiciary in his last month in office may rekindle the debate over the constitutionality of that practice. For the reasons that follow, I have concluded that recess appointments to the federal judiciary are unconstitutional. Recess appointees therefore should not be permitted to exercise the judicial power of the United States conferred under Article III of the U.S. Constitution.

The power that Article II of the U.S. Constitution grants to a President to make recess appointments to the federal judiciary conflicts directly with Article III's requirement that federal judges have life tenure and receive compensation that is not subject to being diminished while in office.

Article II, Section 2 provides that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States . . . ." Article II, Section 2 further provides that "[t]he 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." It is well established that federal district court and court of appeals judges are "Officers of the United States" for purposes of Article II and that the recess appointment clause applies to judicial vacancies.

Article III of the U.S. Constitution provides, in pertinent part:

"The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office."

As the U.S. Supreme Court explained in United States ex rel. Toth v. Quarles, 350 U.S. 11, 16 (1955), "[t]hese courts are presided over by judges appointed for life, subject only to removal by impeachment. Their compensation cannot be diminished during their continuance in office. The provisions of Article III were designed to give judges maximum freedom from possible coercion or influence by the executive or legislative branches of the Government."

Judicial recess appointees, if not confirmed by the Senate, serve only until the close of the Senate term following the recess in which the appointment occurred. The compensation paid to judicial recess appointees is not immune from diminution. In fact, to discourage recess appointments, Congress enacted 5 U.S.C. § 5503, which prohibits (with certain, limited exceptions) recess appointees from receiving any compensation from the federal government for their services. Judge Gregory does not appear to qualify for any of the statutory exceptions, and thus he most likely is not being paid anything for his service as a Fourth Circuit judge. By contrast, judges authorized to exercise the judicial power of the United States under Article III of the Constitution have life tenure and are paid compensation that is not subject to being reduced during their time in office.

The strongest argument in favor of the constitutionality of recess appointments to the federal judiciary is the history of the practice. Presidents have made a total of 310 recess appointments to the federal judiciary since 1789, including eleven appointments to the U.S. Supreme Court. The Senate has confirmed 263 of these recess appointees to serve as Article III judges and has rejected only one Supreme Court recess appointee. See Virginia L. Richards, Note, Temporary Appointments to the Federal Judiciary: Article II Judges?, 60 N.Y.U. L. Rev. 702, 703-04 (1985). Many of these judicial recess appointments occurred very early in our nation's history. See Thomas A. Curtis, Note, Recess Appointments to Article III Courts: The Use of Historical Practice in Constitutional Interpretation, 84 Colum. L. Rev. 1758, 1775 (1984).

Recess appointments to the federal judiciary became more controversial in 1953, when President Eisenhower used the recess appointment power to place Earl Warren on the Supreme Court. Chief Justice Warren was serving as a recess appointee when Brown v. Board of Education was reargued before the Supreme Court. Eminent constitutional scholar Henry M. Hart, Jr. wrote in the Harvard Law School Record on October 8, 1953 that for Warren to take his seat on the Court before Senate confirmation would "violate the spirit of the Constitution, and possibly also its letter." Professor Hart stated that Chief Justice Warren would be in the untenable situation of knowing that President Eisenhower had not yet submitted his nomination to the Senate, that Eisenhower could thereafter withdraw the nomination, and that the Senate could postpone a decision on the nomination until after it saw how Warren ruled in the Brown case. Professor Hart reasoned that a judge could not exercise the necessary Article III 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." See United States v. Woodley, 751 F.2d 1008, 1015-16 (9th Cir. 1985) (en banc) (Norris, J., dissenting), cert. denied, 475 U.S. 1048 (1986).

According to the dissenting opinion in Woodley, concerns similar to those voiced by Professor Hart were realized in 1961 when Griffin Bell and Walter Gewin received recess appointments to the Fifth Circuit. The dissent explains that Judge Bell suggested to Fifth Circuit Chief Judge Tuttle that Judge Gewin should not be assigned to hear sensitive race-related cases because it might cause difficulty for Judge Gewin at his confirmation hearings. In response, Chief Judge Tuttle agreed that the court would not assign any such cases to Judge Bell or Judge Gewin until after their Senate confirmations. Woodley, 751 F.2d at 1023.

Only two appellate decisions address the constitutionality of judicial recess appointments to the federal judiciary, and both have upheld the practice. In United States v. Allocco, 305 F.2d 704 (2d Cir. 1962), cert. denied, 371 U.S. 964 (1963), a unanimous panel of the Second Circuit rejected the constitutional challenge of a defendant whose criminal trial was presided over by a recess appointee.

Since 1964, there have been only two recess appointments to the federal judiciary. The most recent, of course, involved Judge Gregory. The second most recent was President Carter's recess appointment on December 31, 1980 of Walter M. Heen to the U.S. District Court for the District of Hawaii. Before leaving office in January 1981, President Carter submitted Judge Heen's nomination to the Senate. President Reagan promptly withdrew the nomination on January 21, 1981. Judge Heen continued serving as a federal district judge until December 16, 1981, when the 97th Congress ended its first session. In United States v. Woodley, 726 F.2d 1328 (9th Cir. 1983), a unanimous three-judge panel of the Ninth Circuit vacated the conviction of a defendant whom Judge Heen found guilty following a bench trial. The panel ruled that recess appointees lacked the necessary attributes of Article III judges and therefore could not exercise the judicial power of the United States.

The Ninth Circuit then took the case en banc. The eleven-judge en banc panel, by a vote of 7-4, upheld the constitutionality of judicial recess appointments. See United States v. Woodley, 751 F.2d 1008 (9th Cir. 1985) (en banc), cert. denied, 475 U.S. 1048 (1986). Judge Norris wrote a powerfully persuasive dissenting opinion, in which Judges Fletcher, Ferguson and Reinhardt joined. The dissenters argued that "the principles of separation of powers and judicial independence that animate Article III heavily outweigh the concerns of expediency and efficiency that underlie the Recess Appointments Clause." Id. at 1032.

Relevant U.S. Supreme Court precedent demonstrates that the dissenters in Woodley were correct. In Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982), six Justices concluded that judges who lacked the tenure and compensation protections provided in Article III of the U.S. Constitution could not preside over Article III cases. See also Glidden Co. v. Zdanok, 370 U.S. 530 (1962) (recognizing that only Article III judges can exercise the judicial power of the United States).

In Evans v. Gore, 253 U.S. 245, 252 (1920), the Supreme Court explained that the purpose of Article III's tenure and compensation protections "was to invest the judges with an independence in keeping with the delicacy and importance of their task and with the imperative need for its impartial and fearless performance." And, in United States v. Will, 449 U.S. 200, 218 (1980), the Court explained that Article III's tenure and compensation clauses recognized that a "[j]udiciary free from control by the Executive and the Legislature is essential if there is a right to have claims decided by judges who are free from potential domination by other branches of government." The Court also observed that Article III was intended to prohibit the English monarchy's practice, in colonial times, of "mak[ing] Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries." Id. at 219.

Given the U.S. Supreme Court's repeated holdings that only judges with life tenure and a salary not subject to diminution can exercise the judicial power of the United States conferred in Article III of the U.S. Constitution, it follows rather easily that federal judicial recess appointees cannot constitutionally exercise that judicial power.

It is uncertain what remedy should be afforded to a litigant who is disgruntled by the decision of an Article III appellate court in which a non-Article III judge has participated. The U.S. Supreme Court has recognized that where a judge who should be barred from deciding a case on appeal casts the decisive vote, the judgment cannot stand. See Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 827-28 & n.4 (1986). In Lavoie, three concurring Justices maintained that, where a judge impermissibly takes part in the decision-making process of a multi-judge court, the outcome must be vacated even if that judge did not cast the deciding vote.

Once the controversy over President Clinton's last-minute pardons subsides, the battle over the constitutionality of federal judicial recess appointments is ready to begin anew.

This article is reprinted with permission from the March 12, 2001 issue of The Legal Intelligencer © 2001 NLP IP Company.