Recess Appointment for Pickering

Fri Jan 16 16:13:20 PST 2004

I am honestly very grateful for the education that my learned list colleagues are providing -- to me and many others on the list -- about the historical background here.  When I sent my initial email, I also thought I recalled that Eisenhower had appointed Warren by recess, but then I thought, "No, he couldn't have done with for a CJ appt!"  But I guess he did.  Would the Senate have followed through with confirmation if Warren had written Brown v Bd of Ed before the Senate vote?  That's a pretty compelling argument for why recess appointments of judges are a BAD idea (and totally inapposite, to respond to another posting, to Clinton's recess appointments of non-judicial officials -- that may well have been mischievous and inappropriate, but hardly threatens upset of the separation of powers affecting all three branches of the federal government).

Mary Dudziak suggests that she would agree with my view that Kennedy's action was indeed very different from Bush's today.  Aside from the special justification of using the recess maneuver to overcome, not a wall of opposition by the opposition party but narrow, regional, and racist opposition from within his own party -- there had not been any prior Senate considerations of Marshall when Kennedy acted.

If Bush had used the recess maneuver to appoint, ab initio, a judicial nominee that he thought might otherwise face rejection by a cloture-proof mass of Senate Democrats, I would have been more amused (at the futility and stupidity of the maneuver) than outraged.

What sharpens the outrage here is that Bush is coolly defying the twice-expressed prior rejection of his nominee.  Purely as a political spectator, I admire the brutal skill of Bush's hardball tactics.  I will enjoy watching the Senate Democrats' response.

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 Mary L. Dudziak
Sent: Friday, January 16, 2004 4:05 PM
To: conlawprof at lists.ucla.edu
Subject: RE: Recess Appointment for Pickering

In different circumstances, Thurgood Marshall was a JFK recess appointment to the 2nd Circuit in 1961.   Here's how Juan Williams describes it in his biography of Marshall:
"The nomination was carefully timed.  The Kennedy brothers, anticipating opposition, nominated Marshall a week before the Senate Judiciary Committee was to go out of session for the rest of the year, not leaving the committee time to act.  Thus the president was able to give Marshall a recess appointment, allowing the new judge to be in place until Congress could reconvene.  That meant Marshall would be on the bench and acting as a judge before segregationist opposition to his appointment could take shape."  p. 294
Facing opposition from Southern Democrats, Marshall's confirmation stretched out over many months, with hearings scheduled intermittently.  He ultimately received a 2-1 negative subcommittee vote, but a positive judiciary committee vote, and was confirmed by the full Senate in September 1962.  

Mary Dudziak

At 03:13 PM 1/16/04 -0800, you wrote:

Are any of my more learned list colleagues aware of a previous instance in which a President used the recess-appointment procedure to appoint a judge who had already failed to receive Senate approval (twice!) after ample consideration by the Senate under its own rules?

I know Eisenhower appointed several judges (including Frank Johnson whom I clerked for) by recess appts, even Justice Brennan (can't recall if any other Eisenhower Justices were so appointed).

None of those appointments were controversial (at least not when made), yet even then, the very popular and revered President Eisenhower got considerable flak for doing this, or so I have heard, and my impression was that later Presidents have not used recess appointments for judges at all, or very rarely.  My impression is that recess appointments were intended as a stopgap back in the old days when Congress met less often, communications were much slower, and there might be a dire need to fill an office before Congress next met.

Bush is evidently gambling that by January 2005, he will have a filibuster-proof Senate majority, or perhaps a favorable change in Senate rules by then, that will allow him to make Pickering's appointment permanent.  This is, of course, technically in compliance with the President's recess power.  But in spirit it seems a blatant abuse of any notion of respect for a coordinate branch of government.  To use a recess appointment precisely to bypass -- indeed, in an attempt to reverse -- TWO prior Senate rejections of a nominee -- seems the sort of brazen abuse of power and the rule of law we have become accustomed to under the Bush regime, but which should still trigger outrage -- and it does mine!

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 Steve Wermiel
Sent: Friday, January 16, 2004 1:39 PM
To: CONLAWPROF at lists.ucla.edu
Subject: Recess Appointment for Pickering

And in yet another twist in the judicial confirmation battles:

Bush Installs Pickering on Appeals Court 

The Associated Press
Friday, January 16, 2004; 3:17 PM 

WASHINGTON - President Bush installed Charles Pickering on a federal appeals court Friday, bypassing Democrats who had stalled his nomination for more than two years, sources said.

Bush appointed Pickering by a recess appointment which avoids the confirmation process. Such appointments are valid until the next Congress takes office, in this case in January 2005.

Steve Wermiel
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Mary L. Dudziak
Judge Edward J. and Ruey L. Guirado Professor of Law and History
University of Southern California Law School
University Park
Los Angeles, CA   90089-0071
phone:  213.740.4789
fax:  213.740.5502
mdudziak at law.usc.edu
http://lawweb.usc.edu/faculty/mdudziak.htm

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