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The recess appointments that didn't bark

Criticism continued to pour out today in response to President Obama's recess appointments to the National Labor Relations Board, and the National Right to Work Legal Foundation announced it was filing motions demanding that former SEIU and AFL-CIO counsel Craig Becker recuse himself from 12 cases involving the foundation.

But other than Becker, and to a lesser extent the appointment of Buffalo labor lawyer Mark Pearce to the NLRB, the recess appointments provoked relatively little protest. Appointing a USTR negotiator in Geneva who had been blocked by Sen. Jim Bunning (R-KY) over Canadian tobacco policies would not be expected to cause a political firestorm.

President Obama also declined to make recess appointments of a few real hot-button nominees, the hottest of which is probably Dawn Johnsen to head the Office of Legal Counsel at the Department of Justice. There are also several prominent, much-opposed judicial nominees -- Louis Butler of Wisconsin, Edward Chen of California -- who were voted out of the Senate Judiciary Committee but whose nominations have not come to the floor. Recess appointments of judicial nominees are relatively infrequent because, unlike a lifetime appointment if confirmed, they can only serve until the end of the next session of Congress, which in this case would be the end of 2011.

The Congressional Research Service issued a report on recess appointments to the federal judiciary in September 2001 after President Clinton used his appointment power to place Roger L. Gregory on the Fourth Circuit. CRS concluded


Despite ligitation in Allocco and Woodley, the President's use of recess appointments for federal judges remains an unsettled constitutional issue. The President's appointment powers under Article II are in tension with the Senate's confirmation role and with the constitutional guarantees to federal judges under Article III. The issues identified by Senator Hart in his 1960 resolution are still with us. Individuals placed on Article III courts for an interim period lack the independence of judges who are given life tenure and are protected against diminution of salary. Recess appointees weaken the advice and consent role of the Senate and, some believe, diminish the constitutional protections accorded to litigants.

As a result of the controversy over the Eisenhower recess appointments of Warren, Brennan, and Stewart, there appears to be a political agreement that the President should not use recess appointment powers for Justices of the Supreme Court. After President Carter's appointment of Judge Heen, there seemed to be a similar agreement for lower court judges. Because of President Clinton's appointment of Judge Gregory, the dispute over recess appointments for district courts and the federal circuits has been rekindled.

The Senate can issue sense-of-the-Senate resolutions and other non-binding statements, but it cannot prevent the President from invoking the recess appointment power to appoint federal judges. However, the issue is as much subject to political checks and understandings as it is to judicial rulings. The Senate always has the option of making it clear that such interim appointments would be defeated overwhelmingly when the individual is nominated for a lifetime appointment. Should it do so, it would give notice that such appointees could expect limited tenure. Presidents would then decide whether it is worth the laborious process of completing background checks on nominees and interviewing them, merely to put judges on the court for brief periods.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.