Recess Appointments of Article Iii Judges: Three Constitutional Questions

Abstract

Recess appointments of judges present three major constitutional questions. First, may a recess appointment be made if the vacancy existed prior to the recess? Second, may a recess appointment be made during a recess in the midst of a Senate session? Third, may recess appointments be made to fill vacancies on Article III courts?

This article, which was first presented at the Jurocracy and Distrust conference at Cardozo Law School, concludes that the best answer to each of these three questions is yes. It traces the practice of recess appointments to fill vacancies that existed prior to the recess back to the presidency of James Madison, and suggests that it may date back even further to the presidencies of John Adams and Thomas Jefferson. It argues against attempts to limit the recess appointment power to intersession recesses. Finally, it argues that recess appointments to Article III courts are not only rooted in longstanding historical practice, but that by stepping back from our legal culture's fixation on judges, and considering other federal offices whose terms and conditions are set by the constitution, we can see that construing Article III's good behavior requirement together with Article II's recess appointment provision is not a matter of deciding which one is somehow more specific than the other, nor of choosing which of conflicting provisions reflects the more important value, but rather presents the unexceptional task of construing a provision establishing the term of an office with a provision for filling that office on an interim basis.

Keywords: recess appointments, Article III, life tenure