Graves Scott E. - Justice Takes a Recess

Justice Takes a Recess

Judicial Recess Appointments from
George Washington to George W. Bush

SCOTT E. GRAVES AND ROBERT M. HOWARD

LEXINGTON BOOKS

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Copyright 2009 by Lexington Books

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British Library Cataloguing in Publication Information Available

Library of Congress Cataloging-in-Publication Data

Graves, Scott E., 1971

Justice takes a recess : judicial recess appointments from George Washington to George W. Bush / Scott E. Graves and Robert M. Howard.

p. cm.

Includes bibliographical references and index.

ISBN 978-0-7391-2662-2

1. JudgesSelection and appointmentUnited States. I. Howard, Robert M., 1956 II. Title.

KF8776.G666 2009

347.73'14dc22 2009004795

Printed in the United States of America

The paper used in this publication meets the minimum requirements of American National Standard for Information SciencesPermanence of Paper for Printed Library Materials, ANSI/NISO Z39.481992.

Dedications

Scott E. Graves:

To my father, Thomas M. Graves, Jr., my mother, Betty G. Graves, and my brother, Michael Graves

Robert M. Howard:

To my parents, Amy and Bernie Howard

Acknowledging the assistance of others is an exercise in balancing hazards. One risks omitting someone whose support, provided perhaps early in the project, was indispensible to the endeavor, but is overlooked in the reckoning. On the other hand, those mentioned stand in jeopardy of being implicated in a crime they didnt commit. Nevertheless, we owe a debt to many scholars who provided feedback on various parts and incarnations of the work in this book at conferences. In that regard, we would like to thank Rich Pacelle, Bradley Hays, Kevin McMahon, David Crocker, and Robert Spitzer.

We are particularly obliged to Pam Corley, for her contributions to .

Throughout the process of developing these materials into the book and preparing it for publication, we have been delighted to find the editors and staff with whom weve worked at Lexington and Rowman & Littlefield to be friendly, helpful, and capable. We would especially like to thank acquisitions editor Joseph C. Parry, editorial assistants Jana M. Wilson and Anna Miars, and assistant editor Ashley Baird.

For able research and other assistance, wed like to thank Shenita Brazelton, Carol Walker, and Aimee Wickman.

Bob Howard would like to thank his family. To my children, Courtney and Jordan thank you for being wonderful, loving and always challenging. I am sorry that I made you Met fans, but blame Papa. To Dave, thank you for letting me adopt and support a Senator who is not from my home state. I thank my parents, Amy and Bernie Howard for all their sacrifice, love and devotion. I want to thank my late grandparents, Ivan and Rachel Skura and William and Anna Horowitz. You all let me grow up in an extended family atmosphere of love, support and really good food. I took this for granted and only many years later do I realize how lucky I was. Finally to Taryn, the love of my life and my best friend for all these years, with you all losses are restored and sorrows end.

Scott Graves would like to thank his colleagues at Georgia State University for all of their insight and patience while this book was taking shape. During many conversations in halls and offices, knowingly or not, you helped me to think about the issues and implications of this work. In that spirit, Id like to thank Rich Engstrom, Charles Hankla, Jeff Lazarus, Jason Reifler, and Amy Steiger-walt.

On April 9, 2003, President George W. Bush nominated William H. Pryor, Jr. to the United States Court of Appeals for the Eleventh Circuit. His confirmation stalled in the Senate when interest groups objected to his views on various matters. With the nomination languishing in the United States Senate, Congress adjourned for twelve days in mid-February, 2004, taking advantage of the Presidents Day holiday weekend. During the congressional recess period, President Bush used his recess appointment power to install Pryor as judge, thus bypassing the confirmation process in the U.S. Senate. Pryor then resigned his position as attorney general for the state of Alabama and took his judicial oath for a term lasting until the end of 2006 when the next Congress begins.

The Senate eventually confirmed Pryor as a judge. However, before his confirmation, plaintiffs challenged the authority of the president to make this type of recess appointment. In Evans v. Stephens, 387 F.3d.1220 (2004), a divided en banc Eleventh Circuit rejected the plaintiffs contentions and, with majority and dissenters differing on the plain meaning of the United States Constitution, upheld the appointment of their colleague, Judge Pryor.

The case sparked a vigorous debate within the court, with both sides offering similar theories of constitutional interpretation. Writing for the majority, Chief Judge J.L. Edmondson relied on text, intent, historical practice, and precedent to support the constitutionality of the appointment. He noted that the Constitution specifically says that The President shall have 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, and that vacancies refer to Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are note herein otherwise provided for, and which shall be established by law. The plain meaning of this clause was that the president is allowed to make temporary recess appointments to these offices, including all Article III courts such as the United States Circuit Courts of Appeals, without Senate approval.

Moreover, the court held that the phrase the Recess of the Senate does not limit the president to intersession as opposed to intrasession recesses. There is no language referring to any minimum time in these clauses, and presidents have several times made appointments during intrasession recesses even shorter than that in which the Pryor appointment was made.

There were two dissents to Chief Judge Edmondsons majority opinion. The first, by Judge Rosemary Barkett, challenged the interpretations of the Recess Appointment Clause proffered by the majority, highlighting the difficulty of interpreting the text of a document that is more than two hundred years old. Judge Barkett challenged the majoritys assertion that where the language is susceptible of different interpretations, the court should defer to historical practice and the preferences of the other branches of government. Barkett argued that the intent of the framers, as evidenced by Alexander Hamilton in the Federalist Papers and Justice Joseph Storys early nineteenth-century treatise, was that the purpose of the Recess Appointment power was to enable the President to fill vacancies when the Senate was not able to act on the appointments, so that the operations of government and the administration of justice could be furthered. Thus, the Recess Appointment power was meant only for intersession, not intrasession, recesses. Otherwise, Judge Barkett argued, there would be nothing to prevent the President from repeatedly circumventing the Senates advice and consent role.