RE: Recess Appointment for Pickering

[Matthew J. Franck]

There is at least one example, quite recent, of a judge given a recess appointment after the nomination "failed to receive Senate approval" (once in this case) by the definition Bryan Wildenthal gives of "failure": Roger Gregory, appointed to the 4th Circuit by Pres. Clinton on Dec. 27, 2000, twelve days after the 106th Congress ended with no floor action on Gregory's nomination.  The "outrage" at the time was muted at best, and Clinton renominated him on Jan. 3, 2001.  When he was inaugurated, Pres. Bush withdrew Gregory's nomination, but later, in a generous spirit, renewed the nomination (successfully) in the 107th Congress.

I don't see why Bush is to be excoriated for a recess appointment of a man who has never received a floor vote (which he would almost certainly win).  One might question the propriety of judicial recess appointments altogether, or of any appointments during a short intra-session recess.  But there are precedents for both.  And Bush's recess appointment of Pickering may be viewed as a response to an abuse of the Senate filibuster.

By the way, Earl Warren and Potter Stewart also got recess appointments from Eisenhower, which were uncontroversial and were followed by regular confirmations.

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 [EMAIL PROTECTED]
www.radford.edu/~mfranck
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At 06:13 PM 1/16/2004, Bryan Wildenthal 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: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED]]On Behalf Of Steve Wermiel
Sent: Friday, January 16, 2004 1:39 PM
To: [EMAIL PROTECTED]
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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