Confirmation Process Needs a New Rule: Play Nice at Recess

Posted May 18, 2004 at 6:43pm

Recently, leading Democrats have accused President Bush of not playing nice. After Senate Democrats blocked confirmation of a number of judicial nominees, Bush sidestepped the Senate and gave them temporary “recess appointments.” Then, Democrats embargoed all judicial confirmations until the president agrees not to use his recess appointment authority. Yesterday the two sides reached an interim deal to break the deadlock. But more is needed.

The fight has its roots in a mistake that dates back to the drafting of the Constitution more than two centuries ago. Indeed, this mistake is one of the few oversights by framers, who were ordinarily smart about details. While the framers gave the Senate the sole authority to confirm judicial nominations, they also gave the president the authority to temporarily appoint officials without Senate confirmation when Congress was not in session.

Recess appointments have plagued our system ever since. Fortunately, the current controversy offers a unique opportunity for a bipartisan compromise: Congress should undertake a final vote on these nominees and then adopt a simple and categorical rule for future nominees. Under this rule, a judicial nominee who holds a recess appointment would be automatically rejected after the completion of his or her temporary term.

A strong argument can be made that the framers never intended for the recess appointment to be used for judicial officers. However, since there was no debate on the clause and thus no clear record from the Constitutional Convention, we can’t be entirely sure.

However, what is clear, in my view, is that the framers would never have approved of the use of judicial recess appointments by modern presidents. Recess appointments were necessary in the early republic when Congress would be in recess for as much as nine months at a time — with Senators scattered across a country with poor communication links and slow methods of transportation.

Recess appointments were a practical solution to that challenge — and they continue to serve a useful purpose for the appointment of executive offices at times when the president cannot function effectively when dozens of high-level government jobs are vacant.

Still, even with executive branch appointments, the power to make recess appointments has been abused. This president and his recent predecessors have used their authority to appoint candidates who would clearly not be approved by the Senate due to their controversial histories.

However, it is with judicial appointments that this power is most destabilizing to the constitutional process. Presidents have leveraged the Constitution’s ambiguity to repeatedly do what the Constitution was designed to prevent: the appointment of temporary judges who lack both Senate confirmation and lifetime tenure.

Since the nation’s founding, presidents have made roughly 300 such recess appointments. It is not often remembered, but even Supreme Court justices have been given such temporary positions. President Eisenhower used the power to appoint Chief Justice Earl Warren and Justices Potter Stewart and William Brennan to the high court. (Indeed, Warren drafted the opinion in Brown v. Board of Education while holding a recess appointment.)

Presidents believe that such appointments make it difficult for the Senate to reject a nominee, since Senators will see that they have been ruling on cases by the time the nomination is taken up. Indeed, only a handful of recess-appointed judges have ever been rejected by the Senate in final votes.

Most recently, President Clinton revived the practice in his final days of office, using a recess appointment to seat Roger Gregory on a federal appeals court after being blocked by opponents in the Senate. (Gregory was later reappointed by Bush and confirmed.)

Bush gave Charles Pickering and William Pryor recess appointments to the federal appeals bench. To be sure, Bush had legitimate gripes with the Senate over the treatment of these nominees. Pryor is accused of being an extremist because he personally believes that Roe v. Wade was bad law — a position held by many academics and lawyers who are well within the mainstream. In watching Pryor up close when I was a young judicial clerk, I found that, despite our differences on many issues, he is willing to set aside his personal views to carry out the demands of the law.

Still, despite Bush’s well-founded anger about the treatment of such qualified candidates, his being right on the merits does not justify the misuse of recess-appointment power. It is clear to me that the framers never intended for this limited power to be used to defeat the very process of Senate confirmation that they had so carefully crafted.

More important, litigants are entitled to hearings before confirmed judges with lifetime tenure — not constitutional “temps” who must rule on cases even as a potential backlash awaits them either in the legislative or the executive branch.

Compounding matters further, Bush committed a clear error by using a brief holiday weekend to appoint Pryor rather than waiting for a true Congressional recess. While such “intrasession” appointments are not unknown, Pryor’s appointment will raise serious questions over the legitimacy of any decision he renders on the court.

Fortunately, the solution is simple. The Senate should adopt a new rule for judicial confirmations for all future presidents, regardless of their party affiliations: Any judicial nominee given a recess appointment will be rejected for constitutional cause without further debate on the merits. (An exception could be written for a sudden, catastrophic loss of judges.) This rule would correct a longstanding gap in the Constitution and bring a practical end to the use of the recess authority by presidents to sidestep the Constitution.

This can be done in a bipartisan way, without criticism of President Bush, who has simply used a tactic employed — with notable success — by his predecessors. Given the historical use of judicial recess appointments, it would be unfair to apply the new rule retroactively to Pickering or Pryor; they should be considered on their merits as soon as possible in a final Senate vote. But by striking this compromise, the Senate could not only remove the current impasse but actually improve the process for the future.

To paraphrase Robert Frost, sometimes good constitutional fences make for good neighbors.

Jonathan Turley is the Shapiro professor of public interest law at George Washington University.