Pryor's recess appointment

[Bryan Wildenthal]

If that is the established understanding, it nevertheless seems plainly wrong.  The relevant text gives the President "power to fill ... vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session."
 
That clearly seems to contemplate that the "recess" is something that happens between "sessions."  It is highly debatable whether recess appts are proper at all during a short weekend recess, as opposed to a recess between "sessions" in the sense of the annual sessions.  But if, arguendo, the recess appt is valid at all during such short recesses, it logically must follow that "session" should also then be correspondingly re-defined, to mean only the portion of the session that runs until the next recess, however brief.   At the very least, it logically follows that the appointment should expire at the end of the "next" Senate session following the recess, i.e., the end of the annual session that resumes after the brief recess.  At the latest, that would mean until the end of that year's session.  One could argue it should mean only until the next time the Senate takes a recess, however brief.  After all, the Senate will have had a full and fair opportunity, during the "session" between such brief "recesses," to act on a permanent appointment, IF IT WISHES.  Of course, here the Senate will not do so, because it DOES NOT WISH TO (at least the votes are not there under well established Senate rules).
 
What Bush is trying to do here, of course, is NOT fill a vacancy that needs filling because the Senate is out of session in the sense the Framers anticipated (back when Congress left town for months on end) and is truly unavailable to act on a permanent nomination (the obvious constitutional understanding and historical purpose of the clause).  Rather, he is trying to bypass the Senate by installing someone the Senate had a full opportunity to consider, who got a committee hearing and vote, and full floor debate and vote -- REPEATED VOTES! -- and yet refused to confirm under prevailing Senate rules unquestionably within the constitutional prerogative of the Senate to follow.
 
I have spoken at length on this list before about my strong objections to Bush's recess appointment of Judge Pickering in January.  I will avoid rehashing my views at length.  I will just observe that now, with his recess appointment of Judge Pryor, he has again abused the recess procedure in an unprecedented and outrageous manner, plainly subverting the constitutional design, even if (debatably and at best, technically) within the letter of the Constitution.  No other President in American history, so far as I am aware or anyone on this list has suggested, has ever before used the recess procedure to appoint an Article III judge whom the Senate has previously given full committee hearing and vote, and full floor debate and vote, and after all that, has REFUSED TO CONFIRM the nominee.
 
If Senate Democrats had even half the brazenness and political willpower of Bush and his cohorts, they would calmly retaliate against this unprecedented and outrageous abuse of presidential power by shutting down all further confirmations of Bush judicial nominees for the remainder of this term.  Let him appoint them all by recess if he wants to.  His claim that the Senate's refusal to confirm his nominees somehow violates or undermines the Constitution is as nonsensical as a hypothetical claim that a President's exercise of his veto power undermines the Constitution.  It is Bush who is abusing his power and subverting the design of the Constitution, even if (debatably, at best) he has remained within the technical letter of the law on this matter.
 
Bryan Wildenthal
Thomas Jefferson School of Law
 

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu]On Behalf Of Matthew J. Franck
Sent: Saturday, February 21, 2004 8:20 AM
To: conlawprof at lists.ucla.edu
Subject: RE: Pryor's recess appointment


My thanks to Walter Dellinger for the reminder of the Federalist Society white paper.  It seems well-established that the New York Times and Washington Post are right, the Washington Times and Sen. Schumer wrong (and I suppose he will be even madder when he learns this).

Matt
***************************
Matthew J. Franck
Professor and Chairman
Department of Political Science
Radford University
P.O. Box 6945
Radford, VA 24142-6945
phone 540-831-5854
fax 540-831-6075
e-mail mfranck at radford.edu
www.radford.edu/~mfranck
***************************
At 11:08 AM 2/21/2004, Walter Dellinger wrote:


The Federalist Society has a white paper that reviews the law and history of recess appointments and contains cites to the relevant OLC opinions on this issue.  The URL is http://www.fed-soc.org/pdf/recapp.pdf.
 
 
-----Original Message-----
From: Matthew J. Franck [ mailto:mfranck at radford.edu] 
Sent: Saturday, February 21, 2004 11:00 AM
To: conlawprof at lists.ucla.edu
Subject: Pryor's recess appointment

This morning's New York Times and Washington Post report that Bill Pryor, recess-appointed to the 11th circuit yesterday, can serve (if not confirmed by the Senate) through the end of the 2005 session of the Senate.  The Washington Times reports that Pryor's appointment is only good through the end of the current 2004 session, which is also what Senator Schumer thinks: he is quoted there as saying "The only solace we have is that Mr. Pryor will be off the bench in ten months."  As I read Article II, section 2, clause 3, the NYT and WP are correct, and the WT and Schumer are incorrect.  Am I right?

Matt

***************************
Matthew J. Franck
Professor and Chairman
Department of Political Science
Radford University
P.O. Box 6945
Radford, VA 24142-6945
phone 540-831-5854
fax 540-831-6075
e-mail mfranck at radford.edu
www.radford.edu/~mfranck
***************************  

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