Howard J. Bashman's appellate columns, etc.

Test Your Knowledge Of Federal Judicial Recess Appointment Trivia

By Howard J. Bashman
Monday, March 8, 2004
Between January 1981 and December 2000, there were no recess appointments made to Article III federal courts. In December 2000, however, President Clinton used a recess appointment to put Roger L. Gregory onto the U.S. Court of Appeals for the Fourth Circuit.

Judge Gregory became the first African-American to serve on that federal appellate court, which is based in Richmond, Virginia and has within its jurisdiction the states of Maryland, North Carolina, South Carolina, Virginia, and West Virginia. President George W. Bush included Judge Gregory among the first group of the current Administration's nominees for the U.S. Courts of Appeals. Not long thereafter, Judge Gregory was confirmed by an overwhelming majority of the U.S. Senate to a lifetime post on the Fourth Circuit.

More recently, President George W. Bush has made two recess appointments of his own to the U.S. Courts of Appeals. On January 16, 2004, President Bush used a recess appointment to place U.S. District Judge Charles W. Pickering, Sr. onto the U.S. Court of Appeals for the Fifth Circuit. And on February 20, 2004, President Bush used a recess appointment to place Alabama Attorney General William H. Pryor, Jr. onto the U.S. Court of Appeals for the Eleventh Circuit.

Article III of the United States Constitution provides that federal judges whom the President nominates and the U.S. Senate confirms are entitled to life tenure during good behavior and a salary that is not subject to being diminished. The presidential recess appointment power, found in Article II, Section 2 of the U.S. Constitution, provides 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." Thus, judicial recess appointees do not enjoy lifetime tenure or a salary that is not subject to diminishment. Indeed, the federal statute found at 5 U.S.C. § 5503 prevents recess appointees under certain circumstances from receiving any salary whatsoever.

There is some disagreement over whether the President lawfully may use the recess appointment power to place individuals onto Article III courts. In a column published in this space in March 2001, I argued that judicial recess appointments are unconstitutional, notwithstanding the established historical pedigree that recess appointments to the federal judiciary enjoy.

Although the only two federal appellate courts to have considered the constitutionality of judicial recess appointments have found them to be constitutional, no federal court has addressed that question since the mid-1980s. And one of those two courts, the U.S. Court of Appeals for the Ninth Circuit, originally found judicial recess appointments unconstitutional in a ruling by a unanimous three-judge panel. That decision later went en banc, and an eleven-judge en banc Ninth Circuit panel upheld the constitutionality of judicial recess appointments by a vote of 7-4.

Unlike Judge Gregory, whom the U.S. Senate confirmed by a vote of 93-1, Judges Pickering and Pryor are not assured Senate confirmation. In fact, both nominees have been the subject of filibusters in the Senate, and it is far from clear that the upcoming elections will result in the reelection of President Bush along with a filibuster-proof Republican majority in the Senate.

The Supreme Court of the United States, in June 2003, issued a decision that suggests the Court may be willing finally to resolve the constitutionality of recess appointments to the Article III federal judiciary. In Nguyen v. United States, a criminal defendant objected to the lawfulness of the Ninth Circuit's affirmance of his criminal conviction because the three-judge Ninth Circuit panel that decided his appeal included the chief judge of the District Court for the Northern Mariana Islands. Judges serving on that territorial court are Article IV judges who serve only a ten-year term.

The opposing parties before the Supreme Court agreed that the Ninth Circuit had erred in allowing an Article IV judge to hear and decide cases sitting by designation with the Ninth Circuit, and by a vote of 5-4 the Supreme Court held that the panel's unlawful composition required that the Ninth Circuit's unanimous affirmance be vacated and the case remanded for consideration before a properly constituted three-judge Ninth Circuit panel.

Because recess appointees to the federal judiciary lack life tenure, it seems clear that they do not satisfy the U.S. Constitution's definition of Article III judges. Whether the U.S. Supreme Court would nevertheless allow recess appointees to exercise the Article III federal judicial power remains to be seen, but the Supreme Court's recent decision in Nguyen suggests that the Court may be willing to resolve the question soon.

And now for some federal judicial recess appointment trivia. Congress created the current U.S. Courts of Appeals in 1891, and since that date there has been only one recess appointee to a U.S. Court of Appeals who failed to receive U.S. Senate confirmation. He was Wallace McCamant, who served on the U.S. Court of Appeals for the Ninth Circuit from May 25, 1925 through May 2, 1926 following a recess appointment from President Calvin Coolidge. Thus, if Judges Pickering and Pryor fail to achieve confirmation to a lifetime post on their respective U.S. Courts of Appeals, they will join the "Wallace McCamant club."

On the other hand, if Judges Pickering and Pryor fail to receive Senate confirmation before their recess appointments expire, they could still continue to serve as federal appellate judges if the White House uses successive recess appointments to return them to their respective courts. The Federalist Society recently published a paper titled "Judicial Recess Appointments: A Survey of the Arguments." That paper contains a chart listing all recess appointees to the Article III federal courts.

Looking back in history, at least three federal district judges -- William J. Tilson of the U.S. District Court for the Middle District of Georgia; Milton D. Purdy of the U.S. District Court for the District of Minnesota; and Oscar R. Hundley of the U.S. District Court for the Northern District of Alabama -- received back-to-back recess appointments before leaving the federal judiciary. Presumably President Bush could keep Judges Pickering and Pryor on the bench for several more years through successive recess appointments assuming the President's reelection this fall.

Of course, the possibility of successive recess appointments to the federal judiciary highlights one of the main reasons why the practice is objectionable. Unlike life-tenured Article III judges who are insulated from political pressure, recess appointees who desire life tenure need to stay in the good graces of the U.S. Senate, and recess appointees who desire a successive recess appointment need to stay in the good graces of the White House.

For these reasons, I hope that the question whether recess appointments to Article III federal courts are constitutional will soon come before the U.S. Supreme Court, and that the Court will agree to resolve the question on the merits. Until then, we shall see whether the Wallace McCamant club gains any new members, and whether the White House will choose to give successive recess appointments to any of its judicial recess appointees.

This article is reprinted with permission from the March 8, 2004, issue of The Legal Intelligencer © 2004 NLP IP Company.