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http://www.fed-soc.org/pdf/recapp.pdf

THE HISTORY OF JUDICIAL RECESS APPOINTMENTS
The President’s authority to install judges under the Recess Appointments Clause is well established as a matter of historical practice. In fact, Presidents have made more than 300 recess appointments to the federal judiciary.1
Presidents have used their Recess Appointments power to appoint federal judges since the beginning of the Nation’s history. During recesses of the First Congress, President Washington made three recess appointments to the federal district court. There was no apparent objection by any member of his Cabinet or the Senate, which subsequently confirmed all three for lifetime positions on the bench. President Washington also made two recess appointments to the Supreme Court. Although one of them—Chief Justice John Rutledge—was later denied confirmation for a permanent post, it was not due to objections to the earlier recess appointment.2 The first five Presidents made a total of twenty-nine recess appointments of judges.

Fifteen justices of the Supreme Court—including two Chief Justices—were first appointed by recess appointment. Other than Rutledge, all were subsequently confirmed by the Senate for lifetime positions. Recess appointees to the Supreme Court include Chief Justice Earl Warren and Justices Potter Stewart and William Brennan.

The practice of installing judges by recess appointment has fallen into disuse in recent years, however. Until the 1960s, every single President had used the Recess Appointments power to install judges except for two: William Henry Harrison, who died within a month of taking office, and John Tyler, who succeeded to the office upon Harrison’s death. Since the 1969 inauguration of Richard Nixon, there have been only two recess-appointed federal judges—U.S. District Judge Walter M. Heen, installed by President Jimmy Carter and never confirmed by the Senate, and Judge Roger Gregory, recess-appointed to the Fourth Circuit by President Clinton and subsequently confirmed by the Senate to that same court during the Bush Administration.

An overwhelming percentage of recess-appointed judges—approximately eighty-five percent by one count—have been subsequently confirmed for lifetime appointments by the Senate.3 President Kennedy, one of the most prolific users of the recess-appointment power, enjoyed the best record, with all twenty-five of his recess appointees subsequently being confirmed. President Eisenhower made twenty-seven recess appointments and lost only one subsequent confirmation. President Truman, the record holder with thirty-nine recess appointments, secured confirmation for thirty-three appointees. President Coolidge won confirmation for twenty-two of twenty-five recess-appointed judges, and President Theodore Roosevelt secured Senate approval of twenty-six of thirty.

II. THE CONSTITUTIONALITY OF JUDICIAL RECESS APPOINTMENTS

The preceding section demonstrates that Presidents from Washington to Clinton have made recess appointments to the federal courts. But does the Constitution contemplate such appointments? On the one hand, Article III of the Constitution provides for exercise of the judicial power by judges with life tenure and salary protection—neither of which is enjoyed by recess appointees. On the other hand, Article II affords the President the seemingly unfettered power to make recess appointments, including recess appointments of federal judges. The constitutional question, therefore, is whether the tenure and salary provisions of Article III somehow limit the otherwise unfettered Recess Appointments Clause of Article II.

As a preliminary matter, it seems clear that the President enjoys specific constitutional authority to appoint federal judges during a Senate recess. The Recess Appointments Clause of Article II, Section 2, provides that “[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next session.”6 The term “Vacancies” refers to vacancies for positions described in the preceding Appointments Clause, including “Ambassadors, other public Ministers and Consuls, Judges 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.”7 The recess power therefore appears to extend to all vacancies for offices ordinarily filled under the Appointments Clause, and those offices include the offices of federal judges.

But what about Article III? The text of Article III, Section 1, provides in relevant part:

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

Some have suggested that this language, which implicitly gives judges life tenure by providing that judges "shall hold their Offices during good Behaviour," trumps the provision for recess appointments of judges in Article II.
To the extent that the text of the Constitution is ambiguous, however, the historical evidence chronicled in Part I of this paper supports the constitutionality of judicial recess appointments. History is significant to constitutional understanding both as a guide to original meaning and as to the establishment of a constitutional tradition that the courts should not disturb. The unique history of recess judicial appointments is persuasive on both scores.

By the end of 1823, when many of those who drafted the Constitution were still alive, there had been five recess appointments to the Supreme Court, with no recorded opposition. George Washington himself made three recess appointments to federal courts during recesses of the First Congress, and two years later recess-appointed John Rutledge to the Supreme Court. Such an apparent consensus during the Founding period is compelling evidence of the original understanding.

The subsequent history similarly supports the constitutionality of judicial recess appointments. As Justice Frankfurter has observed,

“[T]he way [the Constitution] has consistently operated fairly establishes that it has operated according to its true nature.”

As discussed at greater length in Part I, Presidents of all parties and at many different times during the nation’s history have made recess appointments to every federal court, including the Supreme Court. Even when Congress as a body expressed disapproval of recess appointments to the Supreme Court, moreover, it did not challenge the President’s power to make such appointments:

If there ever was ground for the argument that the more specific language of article III of the Constitution should be construed as excluding judicial appointments from the general authorization given the President in article
II, time has answered it. The President does have such power and this resolution does not argue otherwise.11
While historical evidence cannot supplant a clear constitutional command, the absence of such a command with respect to the recess power suggests that historical evidence should be treated as persuasive.

On the few occasions that judicial recess appointments have been challenged in the federal courts, those challenges have failed. In United States v. Allocco, the Second Circuit rejected a claim that a recess appointee of President Eisenhower lacked the constitutional authority to preside over a criminal trial.

The Court reasoned that because the Constitution expressly confers power to fill “all” vacancies with no exceptions for judges, “it necessarily follows” that recess appointees “may exercise the power granted to Article III courts.”