Recess Appointments

[Matthew J. Franck]

I still fail to understand why Bryan Wildenthal is so exercised about the 
recess appointment of Pickering, which he condemns as only "technically" 
constitutional, but not about the filibuster of his nomination, which might 
be described likewise (and a filibustered nomination is not exactly a 
"rejected" one in the constitutional sense).  On the abuse meter, I think 
these two actions by Bush and his Senate opponents are a wash.

More interesting to me than the question whether one or the other is more 
"abusive" are the following.  First, whether a recess appointment of any 
official, executive or judicial, is appropriate under the modern-day 
pattern of relatively short recesses and adjournments.  The first session 
of the current Congress adjourned Dec. 15, and the second session will 
begin Jan. 20.  There are few if any offices, executive or judicial, that 
cannot stand being vacant for just over a month.  (I realize confirmation 
proceedings would take longer than that, but that's sort of the point.  Had 
there been no pending nomination--Pickering's is still alive in the new 
session, right?--Bush could easily have nominated on Dec. 15 or waited 
until Jan. 20, and it would have made little difference.)  Of course a 
president CAN make such recess appointments, but as a general matter he 
probably SHOULD NOT, since the power was created in contemplation of a 
Congress out of session more often than in session.

Second, should we take seriously the effect on litigants in the federal 
courts of appearing before recess-appointed judges?  Stephen Wasby mentions 
the 9th Circuit case concerning whether a litigant has a "right" to a panel 
of life-appointed Article III judges.  I think the en banc court got that 
right as a "technical" matter, holding that a case could be heard with the 
participation of recess-appointed judge, but again, what CAN be done by 
presidents and what SHOULD BE done by them are two different things.  (The 
same, of course, can be said of the Senate filibuster: no serious 
constitutional challenge can be mounted to it, but its use is more often 
than not unwise and unjust, and certainly so in the case of judicial 
nominations.)  So, are litigants harmed in any way by having to appear 
before such judges?

Just because I'm curious, does anyone know offhand whether President 
Washington was looking at a long intersession period of the Congress, and 
an upcoming Supreme Court term, when he recess-appointed C.J. Rutledge?  My 
guess would be yes, but I don't know.

Matt

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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 <mailto:mfranck at radford.edu>mfranck at radford.edu
www.radford.edu/~mfranck
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