At the request of Senator Kennedy, the Eleventh Circuit has asked the Department of Justice for its views of the constitutionality of President Bush’s recess appointment of William Pryor.
As framed by Senator Ted Kennedy and his erudite counsel, Harvard’s Laurence Tribe, it is a worthy question raising serious issues about the scope and meaning of the president’s recess-appointment power, and whether any federal judge given such a temporary nod possesses the independence intended for Article III judges. The constitutional difficulty, however, is far deeper than that portrayed by Tribe and his senatorial client, and needs to be placed in context to be resolved fairly–at least in the court of public opinion. It is not just a question of whether the Senate’s physical absence is sufficiently long during an intra-session recess of ten days to appoint Pryor, but also of whether the president must constitutionally take cognizance of an extended and continuing refusal on the part of a minority of the Senate to allow the full body to perform its advice-and-consent function in the session immediately prior to the recess.
Presidents have recess-appointed more than 300 federal judges, including 15 Supreme Court justices. The practice is as venerable as George Washington, who named John Rutledge chief justice in this way. When the Justice Department comprehensively examined the president’s recess authority in 1921, the attorney general wrote that the “real question is whether in a practical sense the Senate is in session so that its advice and consent can be obtained.” Tribe rightly understands this opinion to be inquiring about mere physical absence. However, as a constitutionalist indulgent of dynamic interpretation, surely Tribe would also wish to consider how the Constitution might address the problems of the present day. These no longer relate exclusively to the time-consuming nature of non-motorized travel, but also to whether internal Senate rules are wrongfully–arguably, unconstitutionally–being applied to deny the president his appointment authority and the judiciary needed personnel.
Can the fact that the Senate has refused to do its constitutionally appointed work–voting up or down on the president’s judicial nominees–while in session, thereby aggravating judicial need by vacancy, be meaningfully divorced from Senate’s subsequent physical absence during which a vacancy continues? Certainly, it is odd for the Democratic minority to complain about a usurpation of power when after months of presidential pleading for the Senate’s full deliberation on numerous nominees, the response is to leave town for an extended period and show no inclination to get down to business–ever.
In April 2003, President Bush nominated then-Alabama Attorney General William H. Pryor Jr. to the U.S. Court of Appeals for the Eleventh Circuit. A minority of Senators, however, objecting to Mr. Pryor’s personal religious beliefs as well as his unwillingness to praise some of the Supreme Court’s most questionable rulings prevented the nomination from ever receiving a vote. A few Democratic members have now made matters worse by seeking to remove Pryor from hearing cases.
A majority of the Senate has expressed confidence in Pryor–and well they should, for his record of applying the law as written is unassailable. If any further proof of Pryor’s fidelity to legal principle, not politics, was needed, it surely manifested itself in his evenhanded enforcement–during his nomination battle, no less–of the unpopular judicial order requiring the removal of the Ten Commandments from the Alabama Supreme Court complex. Despite majority support in favor of Pryor’s nomination, a 53-44 vote in favor of limiting debate fell short of the 60 votes Senate rules require. With the nomination stuck in Senate limbo, President Bush on February 20, 2004, used his recess-appointment power to seat Pryor on the court until the first session of the 109th Congress ends in late 2005.
Pryor is not the only victim of the Democratic minority’s tactic of defeat by delay, which unfortunately had its desired effect on the nomination of the highly regarded Miguel Estrada, who–had he not been unfairly denied a vote and chosen to withdraw–would have been the first Hispanic jurist on the D.C. Circuit. Other talented nominees such as Justice Janice Rogers Brown of the California Supreme Court have been pending a year or more, and this week, the Democratic minority turned away the former solicitor of the interior, Bill Myers.
The pattern of obstruction is by now well known. First, the nominations of talented men and women are bottled up in committee; then individuals are derided by caricatures supplied by interest groups who misperceive judges as political actors; and then, when the nominees are reported to the floor, full Senate deliberation is blocked through the unprecedented application of the filibuster to judicial nominees. It is the filibuster practice, not the president’s recess authority, that is unconstitutional–premised as it is on an entrenched carry-over rule from a previous Senate denying majority rule to the present body. To the extent that there are difficult constitutional issues posed by the temporary nature of recess judicial assignments, wouldn’t it be far more prudent not to place the president in the awkward position of having to make them in order to meet the demands of a judiciary in extremis?
Failing to allow the full Senate to vote on judicial nominees does real harm to the separation of powers. This default not only gives insufficient respect to the nominations of the president–which Hamilton predicted in the Federalist would be approved except in cases of incompetence or cronyism–but it also imposes direct harm on the judiciary, which must then respond to ever-lengthening dockets without adequate personnel.
The recess-appointment clause of Article II, Section 2 gives the president the power “to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” It has been the view of the Department of Justice and every federal appellate court that has considered the matter that the clause covers vacancies that pre-exist or arise during a recess; and a recess has been defined as any substantial absence, whether it be part of a formal inter-session or within a session–a so-called intra-session recess. Moreover, appellate precedent confirms that the “all vacancies” in the text means what it says: all vacancies for which the president has power of appointment, be they executive or judicial. In modern times, as the Tribe brief concedes, Presidents Truman and Eisenhower appointed a dozen judges during intra-session recesses, and of course, Eisenhower recess-appointed Earl Warren, William Brennan, and Potter Stewart to the Supreme Court, all of whom participated in cases while their nominations were pending. Clinton even named Roger Gregory to the Fourth Circuit during a recess after his party and his vice president had lost the presidency and the Senate.
The framers of our Constitution understood word usage. Had they wanted to permit only inter-session recess appointments to federal departments, they would have expressly said that the president could fill executive vacancies only “between the Sessions of the Congress.” Understanding the limitations of human nature, however, the founding generation wisely gave the president the broader power.
In Federalist 67, Hamilton wrote that the recess clause was needed because “vacancies might happen in their recess, which it might be necessary for the public service to fill without delay.” The harms of declining to complete judicial appointments can be unseen to the eye of many, and in this way they are insidious. But the implications of a wooden and ahistorical interpretation of the recess power may be worse. The need to fill a critical vacancy is no less if it exists in an intra-session recess or if the reason it remains unaddressed is physical impediment or political obstinacy.
Pryor was appointed during a ten-day recess. Yet it was more than ten months after the president nominated him to a seat identified as a “judicial emergency” by the nonpartisan administrative office of the court. Consistent with the text of the Constitution, President Bush appointed Pryor to meet a factually established judicial exigency. The president has done his work and Pryor is doing his. The Senate–over a year later–has yet to vote on his nomination. Rather than unnecessarily raising spurious and difficult constitutional claims engendered by its own misfeasance, it would be better if the Democratic Senate minority allowed the full Senate to faithfully perform its constitutional responsibility.
–Douglas W. Kmiec is chair and professor of constitutional law at Pepperdine University. He a is former constitutional legal counsel to Presidents Reagan and Bush.