RE: Recess Appointment for Pickering

[Mary L. Dudziak]

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: [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
_______________________________________________
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
_______________________________________________
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof

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
[EMAIL PROTECTED]
http://lawweb.usc.edu/faculty/mdudziak.htm

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
[EMAIL PROTECTED]
http://lawweb.usc.edu/faculty/mdudziak.htm

_______________________________________________
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof