Recess Appointments and an Independent Judiciary

Abstract:     
Presidents Clinton and Bush have revived a quiescent executive power, that of recess appointments to the bench. For both Presidents the attractive feature of this route is that it placed their nominees on the bench without Senate confirmation. But because of this by-pass these appointments have been questioned, on political and constitutional grounds. This article is about the constitutional part of the debate and here the questions examined are: (1) whether the present use of the recess appointments clause is so expansive as to exceed the power in fact granted by the clause, thereby infringing the senatorial prerogative of "advice and consent" and (2) whether recess appointments to the bench infringe a right, as derived from Article III of the Constitution, to be heard by judges "free of political domination."

As regards the right: Same as all such appointees, recess appointees to the bench receive a temporary appointment, good only until the end of the next session of the Senate. Whether the appointee gains a permanent seat on the bench is contingent upon renomination by the President and confirmation by the Senate. When the appointee hears a case, then, he or she remains subject to this political pressure and therefore acts in face of the right - as may be claimed by any party whose claim the appointee hears - to be heard by a politically independent judge.

Both of the above questions, about the scope of the power and (assuming the power) about the exercise of it in face of the right to a judge free of political domination, can straightforwardly be answered by a close examination of the text and purposes of the clause and of Article III requirements respecting judicial autonomy. However, the answers thus provided have been clouded by an unfortunate resort to history, more-or-less according to Justice Frankfurter's dictum that "a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned . . . may be treated as a gloss on 'executive Power'." But the history thus deployed seems wrong, both in content and technique. With this history thus discounted, a return to the answers produced by the text and purposes of the relevant constitutional provisions is in order. These answers, as I take it, show that the present uses of the recess appointments clause exceed the power granted, and that assuming the power the right to a judge free of political domination trumps it.

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