Jewish World Review May 19, 2004 / 28 Iyar, 5764
This roughhousing at recess must cease
The boys and girls in Washington have been misbehaving at recess again. After Congress adjourned without confirming a number of President Bush's judicial nominees, Bush put two of his more controversial nominees on the federal courts without Senate confirmation as temporary "recess appointments." The Democrats have now refused to play with the president — barring all votes on judicial nominees — until he promises to behave during recess.
Putting aside the unrestrained hypocrisy and hyperbole on both sides, recess appointments have long plagued our system and should be finally addressed with a simple rule: an automatic rejection of any judicial nominee given a recess appointment.
The recess appointment clause represents one of the few glaring errors by the framers in drafting the Constitution. While the framers gave the Senate the sole authority to confirm such nominations, they also gave the president the authority to temporarily appoint officials without Senate confirmation when Congress was not in session. Though the framers may never have intended to create judicial recess appointments, the matter is not clear in the text. Presidents have used that ambiguity to repeatedly do what the Constitution was designed to prevent: appoint temporary judges who sit without either Senate confirmation or lifetime tenure.
Since the founding of the nation, presidents have made roughly 300 such recess appointments. Of President Kennedy's nominees, 22% were given such appointments. President Eisenhower used the power in 14% of his judicial appointments, including the appointments of Chief Justice Earl Warren and Justices Potter Stewart and William Brennan to the Supreme Court. Presidents believe that the Senate is less likely to reject a nominee who is already ruling on cases — only a handful of recess-appointed judges have been rejected by the Senate in final votes. President Clinton revived the practice in his final days of office when he used a recess appointment to seat Roger Gregory on the federal appeals court after being blocked by opponents in the Senate.
Recently, Bush gave recess appointments to Charles Pickering and William Pryor to the federal appeals court. Bush had legitimate gripes with the Senate over the treatment of these nominees. For example, Pryor is accused of being an extremist because he personally believes that Roe vs. Wade was bad law — a position held by many academics and lawyers. Pryor has shown that he is willing to set aside his personal views to carry out the demands of the law. This includes his unpopular prosecution of Alabama Supreme Court Chief Justice Roy Moore for refusing to remove a monument to the Ten Commandments in the courthouse, even though Pryor agreed with Moore's views.
Despite Bush's well-founded anger about the treatment of such qualified candidates, being right on the merits is not enough to justify the misuse of the recess appointment power. Clearly, the framers never intended for this limited power to be used to defeat the very process of Senate confirmation that they carefully crafted.
More important, litigants are entitled to hearings before confirmed judges with lifetime tenure, not constitutional temps who hold their jobs for short periods and remain subject to potential backlash from either the legislative or the executive branch.
Of course, none of this is to suggest that the current fight is about principle rather than politics. The outraged organizer of this embargo on considering judicial nominees, Minority Leader Tom Daschle, previously applauded Clinton's recess appointment of Gregory. Sometimes, it appears that the two sides simply swap scripts. Recently, Democratic Sen. Charles E. Schumer of New York insisted that Bush's use of recess appointments "puts a finger in the eye of the Constitution." During the Gregory controversy, it was Republican Sen. Orrin G. Hatch of Utah who objected to that recess appointment as "putting a finger in the eye of the Senate."
The solution is simple. The Senate should adopt a new rule for judicial confirmations: Any judicial nominee given a recess appointment will be rejected when they come up for final confirmation. The only exception would be emergencies where there is some sudden, catastrophic loss of judges. Since Congress has never adopted such a categorical rule in the past, it would be unfair to apply this rule retroactively to Pickering or Pryor. However, for future nominees, the Senate should commit itself to the categorical rejection of recess appointees. Courts regularly exclude evidence to deprive police of any value derived from engaging in unconstitutional practices. In the same way, an automatic rejection of recess appointed nominees would eliminate any value to a president engaging in this type of conduct.
It is time to adopt the "play nice at recess" rule. Presidents and senators should save any roughhousing for when it counts: during regularly scheduled sessions.
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JWR contributorJonathan Turley is a professor of law at George Washington Law School.
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© 2003, Jonathan Turley