Order Code RL31112
CRS Report for Congress
Received through the CRS Web
Recess Appointments of Federal Judges
September 5, 2001
Senior Specialist in Separation of Powers
Government and Finance Division
Congressional Research Service ˜ The Library of Congress
Recess Appointments of Federal Judges
On December 27, 2000, President Bill Clinton used his recess appointment
power to place Roger L. Gregory on the Fourth Circuit. The Constitution provides
that such appointments “shall expire at the End of their next Session” (in this case, at
the end of 2001). This was the first time since President Carter that the recess
appointment procedure had been used to select someone to an Article III judgeship,
which provides for life tenure and no diminution of salary. The appointment of
Gregory raised questions about the meaning of the Recess Clause, Senate
prerogatives, and the opportunity of a litigant in federal court to have a case handled
by a judge with full independence. On July 20, the Senate confirmed Judge Gregory
to a life term.
Recess Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Vacancies That “May Happen” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“Recess” of the Senate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Comptroller General Rulings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Funding Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Statutory Language in 1863 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Revisions in 1940 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Dispute in 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Annual Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“Holdover” Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
The Staebler Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Political Accommodations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Nomination of Martha Seger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Agreement with Senator Byrd . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
George Mitchell Understanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Guidelines Under Clinton . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Recess Appointments of Article III Judges . . . . . . . . . . . . . . . . . . . . . . . . . . . .
John Rutledge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Eisenhower’s Appointments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Senate Resolution in 1960 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
The Allocco Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
The Woodley Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Gregory’s Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Selected References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Recess Appointments of Federal Judges
On December 27, 2000, President Bill Clinton used his recess appointment
power to place Roger L. Gregory on the Fourth Circuit. The Constitution provides
that such appointments “shall expire at the End of their next Session” (in this case, at
the end of 2001). This was the first time since President Carter that the recess
appointment procedure had been used to select someone to an Article III judgeship.
The appointment of Gregory raised questions about the meaning of the Recess
Clause, Senate prerogatives, and the opportunity of a litigant in federal court to have
a case handled by a judge with full independence.
The recess appointment power has been used in some instances for non–Article
III judges. Judges on Article III, or constitutional, courts are entitled to lifetime
tenures and are protected against diminution of their salaries. Those privileges do not
extend to non–Article III courts (also called Article I or legislative courts). Over the
past two centuries, Article I courts have included territorial courts, legislative courts,
military courts, U.S. magistrates, and, at various times, the courts of the District of
Columbia. On December 10, 1997, President Clinton used his recess appointment
power to place Christine Odell Cook Miller on the U.S. Court of Federal Claims,
which is an Article I court because the judges have 15-year terms. Similarly, on
January 19, 2001, President Clinton selected Sarah L. Wilson as a recess appointee
to the same court. This report focuses on recess appointments of Article III judges.
The Constitution gives the President the power to nominate, “and by and with
the Advice and Consent of the Senate,” appoint ambassadors, other public ministers
and consuls, Justices of the Supreme Court, and “all other Officers of the United
States, whose Appointments are not herein otherwise provided for, and which shall
be established by Law.” The President also has 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.”1
The framers recognized that the Senate would not always be in session to give
advice and consent to presidential nominations. To cover these periods, the President
is authorized to make recess appointments that are needed to keep government
operating effectively. This provision was adopted at the Constitutional Convention
without a dissenting vote and with virtually no record to fix its intent and scope.2 The
U.S. Const. art. II, § 2, cl. 3.
2 The Records of the Federal Convention of 1787, at 540, 574, 600, 660 (New Haven: Yale
power to make recess appointments is stated in general terms, with no distinctions
between its application to judges or non-judges. However, there is a tension between
the appointment of recess judges—serving on a temporary basis—and the general
principle of judicial independence assured by lifetime tenure.
Federalist No. 67, written by Alexander Hamilton, adds little to the intent of the
Recess Clause.3 He states that the “general mode” of appointing officers of the
United States required joint action by the President and the Senate, and that the
Recess Clause was “nothing more than a supplement ... for the purpose of establishing
an auxiliary method of appointment, in cases to which the general method was
inadequate.” It would have been improper, he said, to oblige the Senate “to be
continually in session for the appointment of officers, and as vacancies might happen
in their recess, which it might be necessary for the public service to fill without delay,
the succeeding clause is evidently intended to authorize the President, singly, to make
temporary appointments ‘during the recess of the Senate, by granting commissions
which shall expire at the end of their next session.’”4 Most of Federalist No. 67 is
devoted to rejecting the claim that the President could use the Recess Clause to fill
vacancies in the Senate.
Vacancies That “May Happen”
Hamilton’s essay raises the question of the meaning of “happen” and “recess.”
What does the Constitution mean when it refers to vacancies “that may happen during
the Recess of the Senate”? Does happen mean “happen to take place” during the
recess, as Hamilton suggested? A long list of opinions by Attorneys General has
interpreted the language more broadly to mean “happen to exist” at the time of a
recess, including vacancies that occur while the Senate is in session and available to
give advice and consent. For example, Attorney General Wirt claimed that the second
and broader meaning satisfied the reason, scope, and purpose of the Constitution,
which to Wirt meant keeping offices filled.5 Other Attorneys General have reached
the same conclusion.6 In 1880, a federal district court concurred in the position of the
Attorney General in opinions issued from 1823 to 1880.7
University Press, 1937, Max Farrand ed.) (hereafter “Farrand”); 3 Farrand 421.
The Federalist, by Alexander Hamilton, James Madison, and John Jay 436-440 (Cambridge,
Mass.: Harvard University Press, 1961, Benjamin Fletcher Wright ed.).
Id. at 438-39 (emphasis in original).
1 Op. Att’y Gen. 631 (1823).
2 Op. Att’y Gen. 525 (1832); 4 Op. Att’y Gen. 523 (1846); 10 Op. Att’y Gen. 356 (1862);
12 Op. Att’y Gen. 32, 38 (1866); 12 Op. Att’y Gen. 455, 457 (1868); 16 Op. Att’y Gen. 522,
524 (1880); 18 Op. Att’y Gen. 29 (1884); 19 Op. Att’y Gen. 261, 262 (1889); 30 Op. Att’y
Gen. 314, 315 (1914); 33 Op. Att’y Gen. 20, 23 (1921); 41 Op. Att’y Gen. 463, 465-66
In re Farrow, 3 F. 112, 113-15 (C.C. N.D. Ga. 1880).
“Recess” of the Senate
The word “recess” also requires interpretation. In 1901, an Attorney General
opinion distinguished between the meaning of “adjournment” and “recess” in such a
way as to limit adjournment to brief periods in the middle of a session, whereas recess
referred to the period when Congress adjourned at the end of a session. Both words
meant the suspension of legislative business, but adjournment implies “a less
prolonged intermission than ‘recess.’” An adjournment means a “merely temporary
suspension of business from day to day, or, when exceeding three days, for such brief
periods over holidays as are well recognized and established and as are agreed upon
by the joint action of the two Houses.” Recess refers to “the period after the final
adjournment of Congress for the session, and before the next session begins.”
Congress “adjourns” in either case, but “[i]t is this period following the final
adjournment for the session which is the recess during which the President has power
to fill vacancies by granting commissions which shall expire at the end of the next
The opinion in 1901 said that earlier opinions by Attorneys General on the recess
appointment power “relate only to appointments during the recess of the Senate
between two sessions of Congress.”9 It acknowledged that if Congress “temporarily
adjourned” in the middle of a session “for several months as well as several days,” this
practice could “seriously curtail the President’s power of making recess
appointments.”10 Nevertheless, the opinion continued to refer to the interval between
one session and the next as “the recess.”11
An Attorney General opinion in 1921 concluded that an adjournment in the
middle of a session, from August 24 to September 21, was of sufficient duration to
permit recess appointments by the President. Breaking with the 1901 analysis, the
Attorney General looked to the “broad and underlying purpose” of the Constitution,
which is “to prohibit the President from making appointments without the advice and
consent of the Senate whenever that body is in session so that its advice and consent
can be obtained.” As to whether the Senate “has adjourned or recessed, the real
question, as I view it, is whether in a practical sense the Senate is in session so that
its advice and consent can be obtained. To give the word ‘recess’ a technical and not
a practical construction, is to disregard substance for form.”12
If a President could make recess appointments during an intrasession
adjournment from August 24 to September 21, “does it not necessarily follow that the
power exists if an adjournment for only 2 instead of 28 days is taken? I unhesitatingly
23 Op. Att’y Gen. 599, 601 (1901) (emphasis in original).
Id. at 602.
Id. at 603.
Id. at 604 (emphasis in original).
33 Op. Att’y Gen. 20, 21-22 (1921) (emphasis in original).
answer this by saying no.”13 The term “recess” required “a practical construction.”
When the Senate adjourns for two days, it remains in session. “Nor do I think an
adjournment for 5 or even 10 days can be said to constitute the recess intended by the
Constitution.”14 In referring to a Senate report written in 1905, the opinion said that
the “essential inquiry” consists of these questions: “Is the adjournment of such
duration that the members of the Senate owe no duty of attendance? Is its chamber
empty? Is the Senate absent so that it can not receive communications from the
President or participate as a body in making appointments?”15
Subsequent opinions from the Attorney General agreed that significant
interruptions in the middle of a session could justify the President’s use of the recess
appointment power. According to an opinion in 1960, a temporary recess of the
Senate, “protracted enough to prevent that body from performing its functions of
advising and consenting to executive nominations,” permits the President to make
recess appointments.16 Following this interpretation, the Senate’s adjournment from
July 3 to August 8 in 1960 constituted a “Recess of the Senate.”17
Opinions by Attorneys General have concluded that short adjournments “for 5
or even 10 days” do not “constitute the recess intended by the Constitution.”18 In
1979, an opinion by the Office of Legal Counsel in the Justice Department held that
a recess from August 2 until September 4, 1979, would be of sufficient length to
entitle the President to make recess appointments.19 A Justice Department brief in
1993 suggested that recess appointments might be justified for recesses in excess of
three days, but the litigation that prompted this statement was not decided on that
Comptroller General Rulings
The Comptroller General of the General Accounting Office has also offered
interpretations of the President’s power to make recess appointments. In 1948, the
Comptroller General received a letter from the Director of the Administrative Office
of the U.S. Courts, regarding the right of payment to four U.S. judges appointed on
a recess basis after the Senate adjourned June 20, 1948, to return on December 31,
1948. The Comptroller General cited with approval an earlier Attorney General
opinion, which had upheld the use of the President’s recess appointment power during
Id. at 24.
Id. at 25.
41 Op. Att’y Gen. 463, 466 (1960).
33 Op. Att’y Gen. 20, 25 (1921).
3 Op. Off. Legal Counsel 314 (1979).
Memorandum of Points and Authorities in Support of Defendants’ Opposition to Plaintiffs’
Motion for Partial Summary Judgment, at 24-26, Mackie v. Clinton, Civ. Action No. 930032-LFO (D.D.C.).
an adjournment from August 24 to September 21, 1921.21 However, the Comptroller
General also ruled that one of the judges was not entitled to payment of salary
because of a statutory provision that prohibited payment of salary to an individual
who had received a recess appointment during a previous recess of the Senate.22
The broad reading of the Recess Clause by Attorneys General prompted
Congress to invoke its power of the purse to limit presidential actions. After
Attorneys General had handed down a number of opinions on the power to make
recess appointments, Senator William Fessenden remarked in 1863: “It may not be in
our power to prevent the [recess] appointment, but it is in our power to prevent the
payment; and when payment is prevented, I think that will probably put an end to the
habit of making such appointments.”23
Fessenden made his comment after the Senate had asked its Judiciary Committee
to explore this question: Did the practice of appointing officers to fill vacancies that
existed prior to a recess, while the Senate was in session, conflict with the
Constitution? The committee rejected Attorney General Wirt’s position that a recess
appointee may fill a vacancy that occurs during a session. To the committee,
interpreting the constitutional language “may happen during the Recess of the Senate”
to include what happened before the recess represented “a perversion of language.”
Such reasoning, said the committee, tilted political power toward the President and
placed undue emphasis on the filling of a vacancy at the expense of Senate
prerogatives. Of equal importance to filling vacancies was the need to protect the
Senate’s opportunity to pass judgment on the qualification of an officeholder. Unless
Congress placed some constraint on the President’s power to make recess
appointments, an “ambitious, corrupt, or tyrannical executive” could nullify the
Senate’s constitutional function.24
Statutory Language in 1863
Congress passed legislation in 1863 to prohibit the use of funds to pay the salary
of anyone appointed during a Senate recess to fill a vacancy that existed “while the
Senate was in session and is by law required to be filled by and with the advice and
consent of the Senate, until such appointee shall have been confirmed by the
Senate.”25 Because of this funding restriction, an officer might have to serve without
pay (relying on savings or loans) until the Senate consented to the nomination.
28 Comp. Gen. 30, 34-37 (1948).
Id. at 37-38.
Cong. Globe, 37th Cong., 3rd sess. 565 (1863).
S. Rept. No. 80, 37th Cong., 3rd sess. 5-6 (1863).
12 Stat. 646 (1863).
That situation arose during the administration of Woodrow Wilson. George
Rublee, nominated to the Federal Trade Commission in March 1915, served for more
than a year as a recess appointee. After the Senate voted to reject him, he continued
to serve the balance of his recess commission until September 1916, when Congress
adjourned. Because of the 1863 legislation, Rublee was not entitled to any
remuneration. Congress had to pass a special appropriation to pay his salary for
fourteen months: from the date his service began to the date the Senate rejected him.26
Revisions in 1940
In 1940, Congress revised the 1863 law to make it less burdensome on
officeholders. Congress changed the law to allow for three exceptions in what is now
5 U.S.C. § 5503. As a general rule, payment may not be made to an individual
appointed during a Senate recess to fill an existing office if the vacancy existed while
the Senate was in session and was by law required to be filled with Senate advice and
consent, until the appointee has been confirmed by the Senate.
However, there are three exceptions. First, payments may be made if a vacancy
arises within 30 days before the end of the session of the Senate. Given the shortness
of time, nominations submitted during that period would be unlikely to gain the
Senate’s approval. Second, payments may be made if, at the end of the session, a
nomination for the office is pending before the Senate (other than for someone
appointed during a preceding recess). This provision protects the Senate from
successive recess appointees, and it protects nominees whose names go forward in
timely manner. Third, payments may be made if a nomination is rejected by the
Senate within 30 days before the end of the session and an individual (other than the
one rejected) receives a recess appointment. This exception takes care of possible
rejections on the eve of a recess. Moreover, the 1940 statute contains an important
limitation: A nomination to fill a vacancy referred to in the three exceptions must be
submitted to the Senate not later than 40 days after the Senate’s next session begins.27
“Next session” has been interpreted in a nontechnical way to mean the return of the
Senate from its recess, not the next session of a Congress.28
Dispute in 2001
The application of § 5503 to Article I judges was raised in 2001, after President
Clinton made a recess appointment of Sarah L. Wilson to the U.S. Court of Federal
Claims. President Clinton nominated her after the 107th Congress convened on
January 3, 2001.29 The Senate then recessed from January 8 to January 20. She was
given a recess appointment on January 19 but her nomination was not resubmitted to
the Senate, as required under § 5503(b).
39 Stat. 801 (1916).
54 Stat. 751 (1950); 5 U.S.C. § 5503 (1994).
41 Op. Att’y Gen. 463, 477 (1960)
37 Weekly Comp. Pres. Doc. 105 (2001).
Senator Strom Thurmond wrote to the Administrative Office of the U.S. Courts
on May 9, stating his belief that Wilson’s salary should be suspended because her
appointment violated § 5503. He suggested that the Administrative Office request an
opinion on the issue from the Office of Personnel Management or the General
Accounting Office.30 William R. Burchill, Jr., Associate Director and General
Counsel of the Administrative Office, replied on May 24 that in the opinion of the
Administrative Office it was appropriate to pay Judge Wilson’s salary and there was
no need to seek any outside confirmation of this understanding. Burchill said that
Wilson fell within the exception set forth in subsection (a)(2) of § 5503, which states
that the salary cutoff shall not apply if, at the end of a session, “a nomination for the
office, other than the nomination of an individual appointed during the preceding
recess of the Senate, was pending before the Senate for its advice and consent.”
Wilson’s nomination was pending before the Senate when it recessed on January 8.
Burchill agreed that § 5503(b) terminates the entitlement of a recess appointee
to pay. However, he said that analyses by the Office of Legal Counsel left it unsettled
as to whether the language “next session” in § 5503(b) refers to a post-recess
reconvening of the same Congress or the beginning of the session of a Congress that
succeeds the adjournment sine die of the current one.31
In addition to the funding restrictions in § 5503, funding limitations have been
included in the annual Treasury-Postal Service appropriations bill. For example, this
language appeared in 2000: “No part of any appropriation for the current fiscal year
contained in this or any other Act shall be paid to any person for the filling of any
position for which he or she has been nominated after the Senate has voted not to
approve the nomination of said person.”32
The scope of the recess appointment power can be complicated by the presence
of “holdover” clauses in federal statutes. These clauses do not concern the
appointment of federal judges, but they have been extensively litigated and help in
defining the meaning and application of the Recess Clause. These cases emphasize
how Congress, by enacting legislation, can specify when a vacancy exists and expand
or limit the President’s opportunity to make a recess appointment.
Letter from Senator Strom Thurmond to the Honorable Leonidas Ralph Mecham, Director,
Administrative Office of the U.S. Courts, May 9, 2001.
Letter from William R. Burchill, Jr., Associate Director and General Counsel of the
Administrative Office of the U.S. Courts to Senator Strom Thurmond, May 24, 2001, at 2.
114 Stat. 2763A-157, § 609 (2000).
The Staebler Case
As an example of a holdover clause, a member of the Federal Election
Commission may serve after the expiration of that member’s term “until his successor
has taken office as a member of the Commission.” This type of statutory provision
has been litigated because it is unclear how the successor takes office: by Senate
confirmation (required for new members) or as a recess appointee. According to the
FEC statute, any vacancy in the membership of the commission “shall be filled in the
same manner as in the case of the original appointment” (presumably by Senate
confirmation). However, on October 25, 1978, President Carter made John McGarry
a recess appointee to the seat held by Neil Staebler, who was serving in a holdover
capacity. Staebler refused to leave office, arguing that McGarry had not been
confirmed by the Senate and therefore no vacancy existed for Carter to fill.
A federal district judge, deciding against Staebler, pointed to some difficulties
with the statute. If a vacancy existed only at the point of confirmation for a successor,
this might place an unmanageable task on the President. How could he recruit
someone for the office and submit a nomination if, in theory, no vacancy existed? The
court also concluded that such a result would disrupt the statutory design of
staggered, six-year terms for the six commissioners. Following Staebler’s
interpretation, the statutory dates for these terms might shift to take account of
holdovers, creating a “baggage of peculiar practical difficulties.”33 The court could
find no clear evidence that Congress had tried to restrict the President’s power to
make recess appointments.34 If the Senate wanted to protect its right to advise and
consent, it could have rejected McGarry’s nomination when Carter first sent it up on
September 27, 1977, and again on April 10, 1978. It was only after two years of
Senate inaction that Carter made the recess appointment.35 On appeal, the D.C.
Circuit dismissed the case as moot, remanding it to the district court.
Controversies over holdover positions turn on the particular language that
Congress enacts. The power to make recess appointments has been a major issue in
the life of the Legal Services Corporation (LSC). Through the use of holdover
provisions and recess appointments, Presidents Reagan and Bush were able to largely
circumvent the Senate’s power of confirmation. Several recent court decisions
explore the President’s power to make recess appointments to the LSC and to other
agencies.36 These decisions analyzed statutory language, such as the length of time
the person could remain in holdover status, and whether the holdover “shall” or
Staebler v. Carter, 464 F.Supp. 585, 589 (D.D.C. 1979).
Id. at 592.
Id. at 601. For the Senate’s record on McGarry, see id. at 587.
Swan v. Clinton, 100 F.3d 973 (D.C. Cir. 1996); Wilkinson v. Legal Services Corp., 865
F.Supp. 891 (D.D.C. 1994), reversed on other grounds, Wilkinson v. Legal Services Corp.,
80 F.3d 535 (D.C.Cir. 1996); Mackie v. Clinton, 827 F.Supp. 56 (D.D.C. 1993); McCalpin
v. Durant, 766 F.2d 535 (D.C. Cir. 1985); McCalpin v. Dana, No. 85-542 (D.D.C. 1982).
See “An LSC Dispute May Take Power from President,” National Law Journal, February 19,
1996, at A1.
“may” continue to serve in office. Thus, the scope of the recess appointment power
in these areas depends on the particular language that Congress places in a statute.
Confrontations over recess appointments in the 1980s and 1990s led to political
agreements between the executive and legislative branches. Although Presidents
claimed full constitutional authority to exercise the Recess Clause, they recognized
that excessive use of this power could trigger credible threats from Senators to place
a hold on all nominations until the White House agreed to an acceptable compromise
that satisfied the institutional prerogatives of both branches.
Nomination of Martha Seger
On May 31, 1984, President Reagan nominated Martha R. Seger to be a member
of the Board of Governors of the Federal Reserve System.37 The Senate Banking
Committee had held four days of hearings and approved her nomination by the close
vote of 10 to 8. A spirited floor debate was expected, but that was foreclosed when
Reagan gave her a recess appointment on July 2 after Congress took a three-week
break for the Fourth of July holiday (from June 29 to July 23).38 Senator William
Proxmire, chairman of the Banking Committee, accused Reagan of abusing his recess
appointment powers and promised to devise remedies that would restrict the
President’s authority.39 Lawmakers also objected to other recess appointments made
On August 8, Senator Max Baucus offered an amendment to a supplemental
appropriations bills, calling on President Reagan to withdraw the recess appointment
for Seger. The Senate voted 53-43 to table the amendment.41 A day later, Senate
Minority Leader Robert C. Byrd introduced a Senate resolution (S.Res. 430), stating
that it was the sense of the Senate that the power to make recess appointments should
be confined to situations in which the Senate has formally terminated a session or in
which the Senate will be in recess for longer than 30 days.42 That resolution was
never put to a vote, but a year later the Senate passed a different resolution offered
by Senator Proxmire (S.Res. 194), expressing the sense of the Senate that recess
appointments should not be made to the Federal Reserve Board except under unusual
circumstances, and only for the purpose of fulfilling “a demonstrable and urgent need”
in the administration of the board’s activities. The Senate also agreed to consider
Public Papers of the Presidents, 1984, II, at 777.
Id. at 1915.
“Proxmire: Seger Appointment Cut Constitutional Corners,” Washington Post, July 6,
1984, at D3.
“Reagan’s Recess Hirings Elicit Resentment,” Washington Post, July 11, 1984, at A17;
“Reagan’s Recess Appointments Rankle Hill,” Washington Post, July 14, 1984, at 1698.
130 Cong. Rec. 22767-82 (1984).
Id. at 23234-36, 23341.
nominations to the board in an expeditious manner. The resolution was agreed to by
On June 13, 1985, the Senate confirmed Seger by voice vote for a term expiring
in 1998. On this occasion the Senate Banking Committee voted 11-4 for her
confirmation.44 Although there was controversy over her recess appointment, there
was never a question of using a funding restriction to deny appropriated funds for her
salary. The Federal Reserve relies on nonappropriated funds to support its
A separate Byrd resolution (S.Res. 213), which the Senate did not act on, stated
that the recess appointment power should be confined to a formal termination of a
session of the Senate or a recess “protracted enough to prevent it from discharging
its constitutional function of advising and consenting to executive nominations.”
Moreover, it stated that since Presidents and departmental heads were authorized by
the Vacancies Act at that time to make temporary appointments for at least 30 days,
“no recess appointment should be made when the Senate stands adjourned or recessed
within a session for a period of less than thirty days.” Finally, the resolution stated
that no recess appointment should be made of any person to any office (1) if the
person has previously, during the same presidential term, been nominated for
appointment to the office, and (2) the Senate has voted not to give its advice and
consent to such appointment, or the appropriate committee of the Senate has voted
not to report the nomination to the Senate.45
Agreement with Senator Byrd
On July 30, 1985, when the Senate was about to recess for the August break,
Senator Byrd wrote to President Reagan, stating that the recess should not be
considered “the kind of extended recess” contemplated for recess appointments. A
broader interpretation, he said, could be seen as “a deliberate effort to circumvent the
Constitutional responsibility of the Senate to advise and consent to such
appointments.”46 When President Reagan continued to use his recess appointment
power broadly, Byrd responded late in 1985 by holding up action on presidential
nominations.47 Senate Majority Leader Bob Dole spoke on September 30 about
Byrd’s “real concern” about recess appointments and hoped to set up a meeting with
the Administration “to allay some of the concerns the distinguished minority leader
has.”48 On October 8, the White House announced that President Reagan was
131 Cong. Rec. 17622-24, 17679 (1985).
1985 CQ Almanac 420.
Id. at 22419, 22496-97.
Id. at 22498.
“Recess Appointments Raise Senators’ Anger,” Washington Post, September 26, 1985, at
A23; Public Papers of the Presidents, 1985 (II), at 1209; “White House Asks End of
Appointee ‘Backlog,’” Washington Post, October 9, 1985, at A17.
131 Cong. Rec. 25303 (1985).
“deeply displeased” that Byrd had held up 70 appointments “touching virtually every
area of the executive branch,” including executive officials and federal judges.49
On October 10, a meeting was held in Senator Byrd’s office to discuss the
problem of recess appointments. In attendance were Senators Dole, Daniel Inouye,
Strom Thurmond, and Howard Metzenbaum, plus two officials from the White
House, Max Friedersdorf and Fred Fielding. It was agreed that the White House
would give notice to the majority and minority leaders prior to a recess, and that the
notice would be enough in advance to give the leaders an opportunity to comment on
potential recess appointments.50
George Mitchell Understanding
On August 4, 1989, Senate Majority Leader George Mitchell warned President
George Bush not to give a recess appointment to William Lucas, who had been
rejected by the Senate Judiciary Committee to head the Civil Rights Division in the
Justice Department. Mitchell argued that the recess appointment power should not
be used to sidestep the Senate, and that making a recess appointment of a nominee
“who was considered and rejected by the relevant Senate committee . . . would be a
very unwise course of action.”51 Lucas did not receive the recess appointment.
Instead, Bush named him to be director of the Justice Department’s Office of Liaison
services, a position that did not require Senate confirmation.52
In November 1989, White House Chief of Staff John Sununu suggested that
unless the Senate moved more quickly on nominations, President Bush might resort
to recess appointments.53 In a floor statement, Mitchell reiterated the understanding
that Senator Byrd had developed on procedures for recess appointments, especially
the practice of Presidents notifying party leaders in advance of recess appointments.54
In 1993, in response to a recess appointment made by President Bush less than two
weeks before leaving office, Senator Mitchell placed in the Congressional Record an
analysis of the recess appointment power prepared by the Senate Legal Counsel. It
had been prepared as an amicus brief, to present the Senate’s position in a pending
recess appointment case, but failed to receive the necessary bipartisan support. The
analysis reviewed earlier understandings that the recess appointment power would be
utilized “only, and rarely, during substantial intrasession breaks.” However, that
understanding had now been replaced by the executive branch’s claim that “there is
no lower time limit” in making recess appointments, a position that “threatens to
Public Papers of the Presidents, 1985, II, at 1209; “White House Asks End to Appointee
‘Backlog,’” Washington Post, October 9, 1985, at A17.
131 Cong. Rec. 27312-13, 27686-87 (1985).
“Mitchell Opposes Recess Appointment,” Washington Post, August 5, 1989, at A5.
1989 CQ Almanac 31.
“Senate Pressed on Nominees,” Washington Post, November 11, 1989, at A25.
135 Cong. Rec. 28390, 31445-46 (1989); “Mitchell Cautions On Appointments,”
Washington Post, November 15, 1989, at A19.
produce a high level of uncertainty, with regard to appointments, into the relationship
between the branches.”55
Guidelines Under Clinton
When the Senate recessed on August 2, 1996, to return on September 3, there
was speculation about who President Clinton might appoint on a recess basis. It was
considered unlikely that he would make recess appointments of six pending names for
federal judgeships: Merrick Garland for the D.C. Circuit, Arthur Gajarsa for the
Federal Circuit, William A. Fletcher for the Ninth Circuit, Eric Clay for the Sixth
Circuit, and Margaret M. Morrow and Susan McIlway for district court seats. Senate
objections would be strong, placing other nominations in jeopardy. Also, the
candidates for these federal positions, “especially out-of-towners with families to
move, often say they would prefer waiting around for confirmation rather than risk
losing the new appointment after little more than a year on the job.”56
On June 4, 1999, President Clinton issued a recess appointment to James C.
Hormel to be ambassador to Luxembourg. The Senate was in recess from May 27
to June 7. When the Senate returned, Senator James Inhofe announced: “I am going
to do the same thing Senator Byrd did back in 1985: I am putting holds on every
single Presidential nomination.”57 Inhofe charged that Clinton treated the Senate
confirmation process “as little more than a nuisance which he can circumvent
whenever he wants to impose his will on the country.”58 Inhofe said he would
continue to block nominations until Clinton agreed to make them only if Congress
was notified in advance and they were “absolutely necessary.”59
President Clinton had followed the practice of notifying Senate leaders before
a recess when he intended to make a recess appointment. In the case of Hormel,
however, he did not notify the leaders until June 3, the night before he made the
appointment. By that time the Senate had already been in recess for a week.60 In his
response to the Inhofe threat, Clinton wrote to Senator Lott on June 15, stating that
his Administration “has made it a practice to notify Senate leaders in advance of our
139 Cong. Rec. 15267 (1993). See “Recess Appointments: A Disputed Matter of Timing,”
Washington Post, July 19, 1993, at A13.
“The Recess Appointment Game,” Washington Post, August 12, 1996, at A11.
145 Cong. Rec. S6654 (daily ed. June 8, 1999).
“Choice of Hormel Spurs Vow to Block Nominees,” Washington Post, June 9, 1999, at
“In Protest of Clinton Action, Senator Blocks Nominations,” New York Times, June 9,
1999, at A20.
“Clinton Vow to Congress Ends a Threat to His Nominations,” New York Times, June 17,
1999, at A22.
intentions in this regard, and this precedent will continue to be observed.”61 With that
agreement in place, Inhofe dropped his threat to block nominations.62
The issue flared up again on November 17, 1999, when Senator Inhofe
challenged what he considered to be an improper use of the recess appointment
power. It was his position that recess appointments “can only be made in the event
the vacancy occurs during the recess.”63 A more expansive reading, he said, would
magnify executive power at the expense of the Senate prerogative of advice and
consent. He reviewed the understanding that Senator Byrd and President Reagan had
reached in 1985. Prior to any recess break, the White House would inform the
Majority Leader and the Minority Leader of any recess appointment that might be
contemplated during the recess. The advance notice would be sufficiently early to
allow the leadership on both sides to take action to fill “whatever vacancies that might
be imperative during such a break.”64
President Clinton had agreed to that procedure in his June 15, 1999, letter to
Senator Lott, in which he said “I share your opinion that the understanding reached
in 1985 between President Reagan and Senator Byrd cited in your letter remains a fair
and constructive framework, which my Administration will follow.”65 If the
Administration violated the spirit of the agreement, Inhofe and 15 other Senators
advised Clinton by letter that they would place holds on “all judicial nominees.”66
Senator Inhofe read into the Congressional Record the names of 13 people
submitted by the White House for appointment.67 The White House-Senate
agreement provided a framework but was not strictly adhered to. Some recess
appointments were made of names not on the list, and Senator Inhofe was unable to
place a total hold on all judicial nominees.68 On February 11, 2000, the Senate
approved Thomas L. Ambro for the Third Circuit and Joel A. Pisano for a district
“Inhofe Ends Threat to Clinton Nominees,” Washington Post, June 17, 1999, at A17.
145 Cong. Rec. S14665 (daily ed. November 17, 1999).
Id. at S14666.
Id. The Senators signing the letter included Jesse Helms, Wayne Allard, Michael Crapo,
Michael B. Enzi, Bob Smith, George Voinovich, Pete B. Domenici, James M. Inhofe, Phil
Gramm, Mitch McConnell, Craig Thomas, Rod Grams, Tim Hutchinson, Conrad Burns,
Chuck Grassley, and Richard Shelby.
Id. at S15060 (daily ed. November 19, 1999).
“Recess appointee wasn’t on list,” Washington Times, December 22, 1999, at A1;
“Senator Vows to Stall Action on Judgeships,” New York Times, December 21, 1999, at
A22; 146 Cong. Rec. S582-84 (daily ed. February 10, 2000); CRS Report RL30821, “Recess
Appointments Made by President Clinton,” by Rogelio Garcia (January 26, 2001).
146 Cong. Rec. S584–89 (February 10, 2000); “Lott Overrides ‘Holds’: Two Judges
Recess Appointments of Article III Judges
In 1789, President George Washington made three recess appointments to the
federal district courts.70 From 1789 to 1799, the recess appointment power was used
to appoint nine other individuals to federal courts.71 All were later confirmed by the
Senate, except for John Rutledge, who Washington had made Chief Justice under a
In 1795, John Jay resigned his position as Chief Justice to assume the office of
Governor of New York. On July 1, President Washington wrote to John Rutledge
of South Carolina, stating that his commission as Chief Justice would take effect on
that day as a recess appointee.72 Rutledge had served as Associate Justice of the U.S.
Supreme Court from 1789 to 1791, but resigned that position to become Chief Justice
of the South Carolina Court of Common Pleas.
After having been named Chief Justice as a recess appointee, Rutledge gave an
intemperate speech on July 16, 1795, bitterly attacking the Jay Treaty. He called it
a surrender of American privileges and a “prostitution of the dearest rights of free
men.” Calling provisions in the treaty the “grossest absurdities” and “ridiculous and
inadmissible,” he said it would be better for President Washington to die, much as he
loved him, than sign the treaty.73 The speech prompted reports that Rutledge was
insane and “daily sinking into debility of mind and body.”74
On December 10, 1795, President Washington nominated Rutledge to a full life
term as Chief Justice. The Senate defeated the nomination five days later, voting 10
to 14.75 The debate on the nomination is not included in the Annals of Congress or
the Senate Executive Journal. On December 26, Rutledge attempted to drown
Confirmed,” Washington Post, February 11, 2000, at A4.
30 The Writings of George Washington 457-58, 473, 485 n.75 (Washington, D.C.:
Government Printing Office, 1940).
Robert Morris, recess appointment of August 28, 1790; William Lewis, July 14, 1791;
Thomas Johnson, August 5, 1791; Samuel Hitchcock, September 3, 1793; John Rutledge, July
1, 1795; Joseph Clay, Jr., September 16, 1796; Benjamin Bourne, October 13, 1796; Bushrod
Washington, September 29, 1798; James Winchester, October 1, 1799 (Second Supplemental
Brief for the United States, United States v. Woodley, No. 82-1028, Ninth Circuit, 1983, at
34 The Writings of George Washington 225. The temporary commission is reprinted in
1 Documentary History of the Supreme Court of the United States, 1789-1800, at 96 (New
York: Columbia University Press, 1985, Maeva Marcus & James R. Perry, eds.).
Leon Friedman, “John Rutledge,” in 1 The Justices of the United States Supreme Court,
1789-1969, at 45 (New York: Chelsea House Publishers, 1969).
Id. at 46.
1 Journal of the Executive Proceedings of the Senate 195-96.
himself by jumping off a wharf into Charleston Bay.76 Two days later he wrote to
President Washington, resigning his commission as a recess appointee to the position
of Chief Justice. He said he was “convinced by Experience, that it requires a
Constitution less broken than mine, to discharge with Punctuality & Satisfaction, the
Duties of so important an Office.”77
Presidents continued to make recess appointments for federal judges. In 1983,
as an appendix to a brief filed in the case of United States v. Woodley, the Justice
Department prepared a list of 309 individuals who had received recess appointments
to Article III courts.78
President Dwight D. Eisenhower placed three men on the Supreme Court after
recesses by the Senate: Earl Warren, William J. Brennan, Jr., and Potter Stewart.
Warren was appointed on a recess basis on October 2, 1953, Brennan on October 15,
1956, and Stewart on October 14, 1958. All three joined the Court and participated
in decisions before the Senate had an opportunity to review their credentials. In each
case the Senate later gave its advice and consent, but the experience convinced a
number of Senators that the procedure was defective for the Senate as well as for the
An article in the Stanford Law Review in 1957 reviewed previous recess
appointments to the Supreme Court. Although nine such appointments occurred from
1791 to 1862, 91 years elapsed before the recess appointment of Earl Warren.
Moreover, of the nine appointments, only two nominees (John Rutledge in 1795 and
Benjamin Curtis in 1851) sat on the Court and participated in decisions before being
nominated for a life term.79 The article discussed a number of problems with recess
appointments to the federal courts, including the need for a judge to participate and
decide cases while having “one eye over his shoulder on Congress,” possibly
depriving the litigants of a fair hearing.80
Members of the House were also concerned about placing individuals on the
courts on a recess basis. In January 1959, the House Committee on the Judiciary
released a 40-page report entitled “Recess Appointments of Federal Judges.” In
transmitting the report, committee chairman Emanuel Celler said that the purpose of
lifetime appointments “is to secure independence of mind to our judges.” If someone
is placed on the court with a recess appointment, that person might “measure his
decisions” against the knowledge that the Senate Judiciary Committee will later
Friedman, “John Rutledge,” at 48.
1 Documentary History of the Supreme Court 100.
Second Supplemental Brief for the United States, United States v. Woodley, No. 82-1028,
Ninth Circuit, at A1-A25.
“Recess Appointments to the Supreme Court––Constitutional But Unwise?,” 10 Stan. L.
Rev. 124, 125, 131 (1957).
Id. at 144.
question those rulings. Moreover, it could be argued that the Constitution
“guarantees litigants a trial before lifetime judges.”81
On May 5, 1959, the Senate confirmed Potter Stewart as a Justice of the
Supreme Court by the vote of 70 to 17.82 During the debate, Senator Philip Hart
expressed his concern about passing judgment on a judicial nominee who has already
been sitting as a recess appointee. As a member of the Senate Committee on the
Judiciary with the responsibility for evaluating judicial nominees, he said that the
practice of making interim appointments to the Court and having the appointee take
his place on the Court “is one which should cease.”83
Senate Resolution in 1960
In 1960, Senator Hart introduced S.Res. 334 to discourage Presidents from
using recess appointments for Justices of the Supreme Court. The resolution stated
that it was the sense of the Senate that this type of recess appointment “is not wholly
consistent with the best interests of the Supreme Court, the nominee who may be
involved, the litigants before the Court, nor indeed the people of the United States.”
Such appointments should be avoided “except under unusual and urgent
circumstances” and, in all such cases, the appointee should not take his seat on the
Court until the Senate had given its advice and consent.84
As reported by the Senate Committee on the Judiciary, the resolution spoke
about institutional interests, such as the “solemn constitutional tasks” of the Senate
giving or withholding advice and consent with respect to nominations made to the
Supreme court, and doing so, “if possible, in an atmosphere free from pressures
inimical to due deliberations.” Nominations for the Court “should be considered only
in the light of the qualifications the person brings to the threshold of the office.”
Although previous Presidents had made recess appointments to the Court, “which
actions were unquestionably taken in good faith and with a desire to promote the
public interest,” those appointments were not made with “a full appreciation of the
difficulties thereby caused the members of this body.” Finally, there is “inevitably
public speculation” about the independence of a Justice serving on a recess basis,
forced to sit in judgment on cases prior to Senate confirmation. Such speculation,
“however ill founded, is distressing to the Court, to the Justice, to the litigants, and
to the Senate of the United States.”85
As a Senate resolution, Hart’s proposal could have no legally binding effect, but
it was intended to express the position of the Senate and to guide executive actions.
Senator Hart referred to the difficulty under which the Senate operated when asked
“Recess Appointments of Federal Judges,” House Committee on the Judiciary, 86th Cong.,
1st sess. iii (Comm. Print, January 1959).
105 Cong. Rec. 7472 (1959).
Id. at 7467.
106 Cong. Rec. 12761 (1960).
S. Rept. No. 1893, 86th Cong., 2nd sess. 1-2 (1960).
to pass upon the nomination of someone who had already taken a seat as a Justice of
the Supreme Court: “it operates to a very great disadvantage upon the Members of
the Senate, and I suggest that if this should develop as a traditional practice, as what
should be done always, rather than under unusual circumstances, it would adversely
affect the Court.”86
Jefferson B. Fordham, dean of the University of Pennsylvania Law School,
remarked that a recess appointee “is serving under the overhang of Senate
consideration of a nomination, which is not in harmony with the constitutional policy
of judicial independence.”87 Senator Hart added that disappointed litigants might
wonder whether the outcome of their case had been influenced by a judge’s recess
status. Judicial independence, in his view, could be affected by several factors:
Either to take a position during his period of probation which would please the
President who had appointed him and who could withdraw his name; or to please
the Senate, which sooner or later, would either approve or disapprove; or, at the
other extreme, conscious of the fact that there would be public scrutiny and
interpretation of his action in light of whether he was bending to the Senate or to
the President, he could rear back and bend the other way in order to prove that he
was subservient to neither branch.88
Opponents of the resolution argued that the President needs to make recess
appointments because of the Court’s heavy workload.89 They regarded the filling of
vacancies on the Court during recesses as a constitutional power lodged in the
President, and felt the Senate should not attempt to meddle with it.90 It was noted
that the power of the Senate is limited to the time after a Justice is nominated, not
before.91 Some Senators objected that the resolution’s language was phrased in
ambiguous fashion.92 Finally, it was objected that the resolution had never been
referred to the Justice Department or the Judicial Conference for comment, nor had
there been any hearings on the resolution.93 The resolution, including the preamble,
reads as follows:
Whereas one of the solemn constitutional tasks enjoined upon the Senate is
to give or withhold its advice and consent with respect to nominations made to the
Supreme Court of the United States, doing so, if possible, in an atmosphere free
from pressures inimical to due deliberation; and
106 Cong. Rec. 18131 (1960).
Id. at 18132.
Id. at 18134.
Id. at 18133 (Senator Hruska).
Id. at 18134 (Senator Wiley).
Id. at 18135 (Senator Wiley).
Id. at 18137 (Senator Hruska).
Whereas the nomination of a person to the office of Justice of the Supreme
Court should be considered only in the light of the qualifications the person brings
to threshold of the office; and
Whereas Presidents of the United States have from time to time made recess
appointments to the Supreme Court, which actions were unquestionably taken in
good faith and with a desire to promote the public interest, but without a full
appreciation of the difficulties thereby caused the Members of this body; and
Whereas there is inevitably public speculation on the independence of a
Justice serving by recess appointment who sits in judgment upon cases prior to his
confirmation by this body, which speculation, however ill founded, is distressing
to the Court, to the Justice, to the litigants, and to the Senate of the United States:
Now, therefore be it
Resolved, That it is the sense of the Senate that the making of recess
appointments to the Supreme Court of the United States may not be wholly
consistent with the best interests of the Supreme Court, the nominee who may be
involved, the litigants before the Court, nor indeed the people of the United States,
and that such appointments, therefore, should not be made except under unusual
circumstances and for the purpose of preventing or ending a demonstrable
breakdown in the administration of the Court’s business.
The Senate passed the resolution 48 to 37, voting largely along party lines.94
Democrats supported it 48-4, with Republicans opposed 33 to 0. The four
Democrats voting against the resolution were Edmund Muskie of Maine, Frank
Lausche of Ohio, John Pastore of Rhode Island, and Albert Gore of Tennessee.95
The constitutionality of recess appointments to the federal bench has been
litigated in two cases in federal circuit courts. The Supreme Court has not ruled on
the issue. When the two cases reached the Court for review, the Court denied
certiorari. One case resulted from an appointment by President Dwight D.
Eisenhower in 1955. The other case involved an appointment by President Jimmy
Carter in 1980.
The Allocco Case
On July 31, 1955, Judge Samuel H. Kaufman retired as U.S. district judge for
the Southern District of New York. On August 2, the Senate adjourned for the first
session of the 84th Congress. On August 17, President Eisenhower issued a recess
appointment to John M. Cashin to fill the vacancy left by Kaufman. Cashin took the
oath of office for the recess appointment on September 15. Dominic Allocco was
tried before Judge Cashin, found guilty by a jury on October 20, and sentenced to 10
years imprisonment. After the Senate reconvened in January 1956, Cashin was
confirmed by the Senate and commissioned as a judge with life tenure. He took the
oath of office for the commission on March 9, 1956.
Id. at 18145.
1960 CQ Almanac, at 517.
Allocco argued that his sentence should be set aside because Judge Cashin was
not constitutionally empowered to preside over the trial. He maintained that (1) the
President has no power to appoint “temporary” judges, (2) if the President can make
interim appointments of judges, they may not preside over criminal trials, and (3) the
President has no power to fill vacancies in the judiciary that arise when the Senate is
The Second Circuit ruled that Judge Cashin was constitutionally empowered to
preside over the trial. It noted that the Constitution expressly gives the President
power to fill up “all” vacancies and that there are no exceptions for judges, which the
petitioner wanted the court to find.97 Since Article II permits the President to make
recess appointments for judges, “it necessarily follows that such judicial officers may
exercise the power granted to Article III courts,” including criminal trials.98 As to the
charge that Presidents may not use the recess appointment power to fill vacancies that
arise while the Senate is in session, the court held that this interpretation “would
create Executive paralysis and do violence to the orderly functioning of our complex
government.”99 The one law review article written in response to this decision was
critical of the court’s analysis.100
The Woodley Case
President Carter nominated Walter Heen for a district judgeship in Hawaii on
February 28, 1980. On September 25, the Senate Judiciary Committee began
confirmation hearings, but no vote had been taken when the Senate recessed on
December 16 at the end of the 96th Congress. On December 31, while the Senate
was in recess, Carter made Heen a recess appointee. Carter’s action came almost two
months after he lost to Ronald Reagan. A month after the recess appointment, on
January 21, 1981, President Reagan withdrew Heen’s nomination and he continued
to sit as a district judge until December 16, 1981, when the first session of the 97th
While Judge Heen sat as a recess appointee, Janet Woodley was indicted on a
drug charge and filed motions to suppress evidence allegedly obtained in violation of
the Fourth Amendment. On November 16, 1981, Judge Heen denied the suppression
motions and presided over a trial at which Woodley was found guilty. Woodley
challenged Heen’s authority to decide these matters as a recess appointee.
In 1983, a three-judge panel of the Ninth Circuit decided this case by analyzing
the inherent tension between the President’s Article II recess appointment powers and
United States v. Allocco, 305 F.2d 704, 706 (2d Cir. 1962), cert. denied, 371 U.S. 964
Id. at 708-09.
Id. at 709.
Id. at 712.
John S. Castellano, “A New Look at Recess Appointments to the Federal
Judiciary––United States v. Allocco,” 12 Cath. U. L. Rev. 29 (1963).
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.”101 Only an “even more explicit constitutional provision” could
override the values in Article III, and the general language of the recess appointment
clause, which “does not mention the judicial branch at all,” was insufficient to
overcome the command of Article III.102 The court’s review of the records and
writings of the constitutional period highlighted the importance of judicial
independence to the framers.103 It also noted that decisions by the Supreme Court
have emphasized the importance of an independent judiciary.104
The Justice Department argued that the “long and accepted” practice of the
President making recess appointments to Article III courts had created an “historical
consensus.” The court acknowledged that there had been 283 previous recess
appointments to the federal bench––six of them to the Supreme Court––and yet also
stated that the practice “fell into disuse a generation ago.” Judge Heen’s appointment
in 1980 “was the only recess appointment in the past twenty years.”105 Although both
the legislative and executive branches had long accepted the President’s power to
make recess appointments to the federal bench, and officials in the two branches
swear to uphold the Constitution, “the courts alone are the final arbiters of its
The Ninth Circuit reviewed a number of decisions that had given great weight
to historical practice and the constitutional interpretations reached by the political
branches. However, it said that that line of reasoning no longer “represents the
thinking of the Court,” especially after INS v. Chadha (1983) struck down a 50-year
experiment with the legislative veto.107 Following the reasoning in Chadha, which
ruled that convenience and efficiency were subordinate values to constitutional
commands, the court concluded that to whatever degree recess appointments to
judgeships contribute to judicial efficiency, they “offend the explicit and unambiguous
command of article III that the judicial power be exercised only by those enjoying life
tenure and protection against diminution of compensation.”108
A majority of the Ninth Circuit voted to rehear the case en banc.109 In 1985, the
full court held that the President may constitutionally confer temporary federal judicial
commissions during a recess of the Senate. Judge Heen could therefore
constitutionally preside over a criminal trial. The court, divided 7 to 4, decided that
United States v. Woodley, 726 F.2d 1328, 1330 (9th Cir. 1983).
Id. at 1331.
Id. at 1331-32.
Id. at 1334-35.
Id. at 1336.
Id. at 1337.
Id. at 1338.
United States v. Woodley, 732 F.2d 111 (9th Cir. 1984).
there is “no reason to favor one Article over the other.”110 Article II explicitly gave
the President the power the fill “all” vacancies during a Senate recess, and there was
“no basis upon which to carve out an exception from the recess power for federal
judges.”111 The court noted that Presidents had made approximately 300 judicial
recess appointments and that Congress “has consistently confirmed judicial recess
appointees without dissent.”112 The court further noted that Rutledge was not
confirmed, but the Senate rejected him not because he was a recess appointee but
because of his speeches against the Jay Treaty.113
As to the importance of Chadha, the court noted that the legislative veto is “a
recent practice, barely 50 years old,” whereas recess appointments to federal courts
“reach back to the days of the Framers.”114 Considerable weight is given to unbroken
practices “acquiesced in by the Framers of the Constitution when they were
participating in public affairs.”115 Since a recess appointee lacks life tenure and is not
protected by salary diminution, the individual “is in theory subject to greater political
pressure than a judge whose nomination has been confirmed.”116 However, “[e]ven
viewing the recess clause as an unwise constitutional provision, it is not for this court
to redraft the Constitution. Changes in that great document must come through
constitutional amendment, not through judicial reform based on policy arguments.”117
Judge Heen served out his recess appointment, which lasted until the end of the
first session of the 97th Congress. President Reagan did not nominate him to a
lifetime appointment. Heen left the federal court to sit on the Hawaii State
Intermediary Court of Appeals.118 Because of Carter’s defeat by Reagan, Heen said
he knew his service on the federal bench would be short-term. He concluded that the
recess appointment in his case was “an exercise in futility [because] you know you’re
not going to be around.”119
Four law review articles analyzed the Woodley case. Two of the articles,
responding to the panel decision, argued that recess appointments to federal courts
are a valid exception to the Article III requirements for life tenure and no-
United States v. Woodley, 751 F.2d 1008, 1010 (9th Cir. 1985), cert. denied, 475 U.S.
Id. at 1011.
Id. at 1010, n.5.
Id. at 1011.
Id. at 1012.
Id. at 1014.
“U.S. Judge’s Recess Appointment Ruled Illegal,” National Law Journal, December 26,
1983, at 15.
“Recess Appointee Says It’s Not a Great Idea,” Washington Post, November 8, 1999, at
diminution.120 The other two, written after the en banc ruling, concluded that recess
appointments to the federal judiciary contravene Article III requirements and argued
that recess appointees may not exercise Article III powers.121
However one analyzes the decision of the Ninth Circuit, sitting en banc, it stands
only for the proposition that if the President and the Senate agree to recess
appointments for federal courts, the appointments are not constitutionally invalid.
The decision does not mean that the President and the Senate are forced in any way
to accept recess appointments to federal courts as the preferred or even acceptable
course. The two political branches could decide, on either political or constitutional
grounds, that the recess appointment power should not be applied to the judiciary.
On the last day of the 106th Congress, December 15, 2000, with the Senate
about to adjourn sine die, Senate Majority Leader Trent Lott voiced concern about
the President’s use of recess appointments, “especially appointments to the Federal
judiciary.”122 Senator Byrd cautioned that the Recess Clause “is not put in there to
enable any President, Republican or Democrat, to play games with the Senate, or to
attempt to do a one-upmanship simply because the Senate is out of session.” He said
he “especially hope[d]” that the Administration would not attempt “to fill a Federal
judgeship during the recess of the Senate,” and that he would not support “any
administration, Democratic or Republican, that attempts to fill Federal judgeships
while the Senate is in recess.” Lott added that he had not been notified of any recess
appointments “or any Federal judicial appointment during this recess period.” He
agreed with Byrd that “any appointment of a Federal judge during a recess should be
opposed.” In recalling the Eisenhower recess appointments to the federal courts, Lott
said that “was a mistake then, and it would be one now.”123
President Clinton had nominated Roger L. Gregory to the Fourth Circuit on June
30, 2000.124 On December 27, he announced Gregory’s recess appointment, the first
time since 1980 that a President had named an Article III judge as a recess appointee.
Clinton offered several reasons for his decision. He said that the U.S. Judicial
Conference had declared the seat “a judicial emergency” and that it had been vacant
Thomas A. Curtis, “Recess Appointments to Article III Courts: The Use of Historical
Practice in Constitutional Interpretation,” 84 Colum. L. Rev. 1758 (1984); Joann Gaona,
“Recess Appointment Power––Exception to or Violation of Article III,” 1984 Ariz. St. L. J.
Paul Ferris Solomon, “Answering the Unasked Question: Can Recess Appointees
Constitutionally Exercise the Judicial Power of the United States?,” 54 Cinc. L. Rev. 631
(1985); Virginia L. Richards, “Temporary Appointments to the Federal Judiciary: Article II
Judges?,” 60 N.Y.U. L. Rev. 702 (1985).
146 Cong. Rec. S11833 (daily ed. December 15, 2000).
Id. at S11834.
36 Weekly Comp. Pres. Doc. 1564 (2000).
for more than a decade. He regarded it as “unconscionable that the fourth circuit,
with the largest African-American population of any circuit in our Nation, has never
had an African-American appellate judge.” Having offered nominations in the past
for this vacancy, without obtaining confirmation from the Senate, he decided that a
recess appointment was justified.125 Clinton said he had “tried for 5 years to put an
African-American on the fourth circuit.”126
Press reports put the Gregory recess appointment in a larger context.
Newspaper accounts described efforts by the Clinton White House to “put the
Senate’s record on black judges in play in the midst of controversy over Presidentelect Bush’s attorney general nominee, Sen. John D. Ashcroft, who has been roundly
condemned by civil rights groups for torpedoing the nomination of another African
American judicial candidate, Missouri Supreme Court Justice Ronnie White.”127
Other reports suggest that the decision to put Gregory on the court as a recess
appointee was made before Election Day.128 Rep. James E. Clyburn, chairman of the
Congressional Black Caucus, stated that if Senate Republicans tried to remove
Gregory, racial representation on the federal bench “would be an even bigger issue in
the mid-term elections than it already is.”129 Another news story interpreted the recess
appointment as not only placing the first black on the Fourth Circuit but “one also
carefully calculated to create political difficulties for the Republican Party.”130
Senator Inhofe, announcing that he would block any effort to confirm Gregory
for a lifetime appointment, called it “outrageously inappropriate for any president to
fill a federal judgeship through a recess appointment in a deliberate way to bypass the
Senate.”131 It was reported that Senator Lott had told Clinton he would oppose any
recess appointments of judges.132
On January 3, 2001, President Clinton renominated Gregory for the 107th
Congress.133 On March 19, President George W. Bush withdrew the names of 10
nominees for federal judgeships, including Gregory.134 In the meantime, the Senate
Id. at 3180.
Id. at 3182.
“Clinton Names Black Judge to Appeals Court,” Washington Post, December 28, 2000,
“4th Circuit Surprise,” Legal Times, January 1, 2001, at 6.
“Clinton Names Black Judge to Appeals Court,” Washington Post, December 28, 2000,
“Clinton Names A Black Judge; Skirts Congress,” New York Times, December 28, 2000,
“Senator Vows He Will Fight Clinton’s Judicial Selection,” New York Times, December
29, 2000, at A15.
37 Weekly Comp. Pres. Doc. 4-5 (2001).
37 Weekly Comp. Pres. Doc. 503 (2001); “ABA’s Role in Vetting U.S. Judges Is
and the White House negotiated over the procedures for acting on judicial nominees.
By early May, it was reported that Senate Democrats said they would not agree to
confirmation votes for Theodore B. Olson as Solicitor General and Larry Thompson
as Deputy Attorney General unless the Republicans restored the right of individual
Senators to block judicial nominations from their home states. They also said they
would block action on any judicial nomination until the issue was resolved.135 In what
was interpreted as a conciliatory move, President Bush announced eleven nominations
for the federal judiciary on May 9, including the name of Roger Gregory for a lifetime
appointment to the Fourth Circuit.136
The Senate Judiciary Committee cleared Gregory on July 19 by a vote of 19 to
0.137 On the following day, the Senate approved Gregory 93 to 1, the sole negative
vote coming from Senator Lott.138 Although there was no floor statement by Senator
Lott, the media quoted his spokesman saying that his opposition to Gregory was “an
institutional decision” designed to protect Senate prerogatives and emphasize his
position that “any appointment of federal judges during a recess should be
opposed.”139 During the floor debate, Senator George Allen spoke in favor of
Gregory but did not want his support interpreted as condoning “the former
President’s political manipulations” and the “past procedural aggravation.”140
Despite ligitation in Allocco and Woodley, the President’s use of recess
appointments for federal judges remains an unsettled constitutional issue. The
President’s appointment powers under Article II are in tension with the Senate’s
confirmation role and with the constitutional guarantees to federal judges under
Article III. The issues identified by Senator Hart in his 1960 resolution are still with
us. Individuals placed on Article III courts for an interim period lack the
independence of judges who are given life tenure and are protected against diminution
of salary. Recess appointees weaken the advice and consent role of the Senate and,
some believe, diminish the constitutional protections accorded to litigants.
As a result of the controversy over the Eisenhower recess appointments of
Warren, Brennan, and Stewart, there appears to be a political agreement that the
Reviewed,” Washington Post, March 20, 2001, at A1.
“Democrats Block Picks for 2 Justice Posts,” Washington Post, May 4, 2001, at A10.
37 Weekly Comp. Pres. Doc. 724-25 (2001); “Bush Will Nominate 11 as U.S. Judges,”
Washington Post, Mary 9, 2001, at A1.
“Panel Clears Judge Gregory, Two Others,” Washington Post, July 20, 2001, at A2.
147 Cong. Rec. S7992 (daily ed. July 20, 2001).
“Senators Confirm 3 Judges, Including Once-Stalled Black,” New York Times, July 21,
2001, at A28.
147 Cong. Rec. S7991 (daily ed. July 20, 2001).
President should not use recess appointment powers for Justices of the Supreme
Court. After President Carter’s appointment of Judge Heen, there seemed to be a
similar agreement for lower court judges. Because of President Clinton’s
appointment of Judge Gregory, the dispute over recess appointments for district
courts and the federal circuits has been rekindled.
The Senate can issue sense-of-the-Senate resolutions and other non-binding
statements, but it cannot prevent the President from invoking the recess appointment
power to appoint federal judges. However, the issue is as much subject to political
checks and understandings as it is to judicial rulings. The Senate always has the option
of making it clear that such interim appointments would be defeated overwhelmingly
when the individual is nominated for a lifetime appointment. Should it do so, it would
give notice that such appointees could expect limited tenure. Presidents would then
decide whether it is worth the laborious process of completing background checks on
nominees and interviewing them, merely to put judges on the court for brief periods.
Carrier, Michael A. “When Is the Senate in Recess for Purposes of the Recess
Appointments Clause?,” 92 Michigan Law Review 2204 (1994).
Castellano, John S. “A New Look at Recess Appointments to the Federal Judiciary—
United States v. Allocco,” 12 Catholic University Law Review 29 (1963).
Chanen, Stuart J. “Constitutional Restrictions on the President’s Power to Make
Recess Appointments,” 79 Northwestern University Law Review 191 (1984).
Curtiss, Thomas A. “Recess Appointments to Article III Courts: The Use of
Historical Practice in Constitutional Interpretation,” 84 Columbia Law Review 1758
Gaona, Joann. “Federal Courts—Recess Appointment Power—Exception to or
Violation of Article II,” 1984 Arizona State Law Journal 783 (1984).
Note. “Recess Appointments to the Supreme Court—Constitutional But Unwise?,”
10 Stanford Law Review 124 (1957).
Richards, Virginia L. “Temporary Appointments to the Federal Judiciary: Article II
Judges?,” 60 New York University Law Review 702 (1985).
Solomon, Paul Ferris. “Answering the Unasked Question: Can Recess Appointees
Constitutionally Exercise the Judicial Power of the United States?,” 54 Cincinnati
Law Review 631 (1985).
U.S. Congress. House Committee on the Judiciary, “Recess Appointments of Federal
Judges,” 86th Cong., 1st sess. (Committee Print, January 1959).
——. Senate Committee on the Judiciary, “Expressing the Sense of the Senate that
Recess Appointments to the Supreme Court of the United States Should Not Be
Made Except Under Unusual Circumstances,” S. Rept. No. 1893, 86th Cong., 2nd
——. Subcommittee on General Oversight and Investigations of the House
Committee on Banking and Financial Services, “The Termination of Mr. Robert H.
Swan as a Member of the Board of the National Credit Union Administration,” 104th
Cong., 2nd sess. (1996).