Does the Constitution permit recess appointments of federal judges?
On Wednesday President Obama announced his recess appointment of Richard Cordray to head the Consumer Financial Protection Bureau, a response to the refusal of the Senate’s Republican minority to act on the Cordray nomination. Obama also invoked the Recess Appointments Clause to bypass Senate confirmation to fill several vacancies on the NLRB. A number of commentators have chimed in on the legality of these appointments in light of the Senate’s attempt to preclude them by holding pro forma sessions (e.g., John Elwood, John Yoo, Richard Epstein [updates: and Larry Tribe, Bruce Ackerman, Michael McConnell, and the OLC's opinion in support of Obama's action]), as to which I have nothing to say. Instead, I’ll address a hypothetical question that raises special concerns not implicated by the CFPB and NLRB appointments: May a President use recess appointments to fill vacancies in the federal judiciary?
This is an interesting question of constitutional law because it sets two clauses of the Constitution on a direct collision course. Article II, section 2, clause 2 provides that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by law”; the last bit includes federal district and circuit judges. Clause 3 is the Recess Appointments Clause: “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 the next Session.” The “Vacancies” referred to in clause 3 are pretty clearly vacancies in the offices just mentioned in clause 2 (vacancies in the presidency and Congress are handled by separate constitutional provisions). Reading Article II alone, then, it’s plain that the President may make recess appointments of federal judges and Justices, whose commissions would then expire at the end of the next Senate session (unless, of course, the Senate confirmed them first).
Yet Article III, section 1 provides that “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour,” a provision which has always been understood to confer life tenure that can be removed only via impeachment, and which, along with the protection of judicial salaries mandated by the same section, is meant to secure the independence of the federal judiciary from the political branches and to protect the rule of law from political influence. In The Federalist No. 78, Alexander Hamilton described the vital importance of an independent judiciary, and explained that such independence was to be achieved in large part by guaranteeing judges “permanency in office.”
Plainly a judge whose appointment will expire at the end of the next Senate session, and who still awaits Senate confirmation, does not have life tenure—his position is nearly the polar opposite of life tenure, since he will have his office only briefly unless he can convince the Senate to confirm him (he must also keep the President happy, lest he refuse to nominate or re-nominate him or withdraw the nomination). So either Article III creates an exception to the apparently universal language of the Recess Appointments Clause—it says “all Vacancies,” but it doesn’t include vacancies on the federal courts—or the Recess Appointments Clause blows a hole in Article III—it commands that “The Judges [of all courts] shall hold their Offices during good Behaviour,” but having some judges who hold their appointments for only a few weeks or months is perfectly constitutional nonetheless.
The Supreme Court has been adamant in recent decades that Article III’s “judicial Power of the United States” may not be exercised by persons who lack the safeguards from political influence provided by Article III, most recently in last Term’s Stern v. Marshall (2011). Stern held that federal bankruptcy judges, who are not “judges” in the Article III sense and who lack life tenure, cannot constitutionally decide state-law counterclaims that come up in the bankruptcy proceedings they run.
The exercise of judicial power by a recess appointee to the federal courts would seem to go well beyond what Stern held unconstitutional. Such a judge would sit on a federal district or appellate court or the Supreme Court and exercise the full range of the federal judicial power rather than just deciding state-law counterclaims that come up in bankruptcy cases (state law claims are usually decided by state judges who lack life tenure, though the Constitution has been understood to permit the decision of any claim by state judges without life tenure). And while bankruptcy judges are appointed to 14-year terms by the federal Courts of Appeals (which are themselves insulated by Article III protections from political influences), a recess appointee would have a term of weeks or months, to be extended or not at the pleasure of the Senate and the President. Moreover, federal bankruptcy courts are supervised by the federal district courts, which can elect to withdraw a case from a bankruptcy judge for decision by the district court “for cause shown,” while a recess appointee would be subject to no more oversight than any other Article III judge. (The Supreme Court has, however, recognized a number of historically established exceptions to the rule that federal judges must have Article III protection, including military tribunals in Dynes v. Hoover (1857) and territorial courts like the courts of general jurisdiction in Washington, D.C. in Palmore v. United States (1973).)
This is not a question on which constitutional text is especially helpful. The Recess Appointments Clause and the life tenure guarantee are in direct conflict. A strong argument can be made that “the specific controls the general,” and that the Recess Appointments Clause is a general provision about the appointments of federal officials generally whereas Article III is a very specific command about the protections that a specific subset of federal officials—federal judges—must enjoy. The commonsense notion that the specific controls the general underlies many well-accepted understandings of the Constitution. For instance, the federal government may generally regulate interstate commerce (Art. I, s. 8, cl. 3), but cannot enforce regulations that abridge the more specific freedom of speech (the First Amendment, which benefits also from the “later in time” canon), though it may forbid or coerce speech pursuant to even more specific provisions like the copyright power (Art. I, s. 8, cl. 8 ) or through provision of compulsory process (Sixth Amendment).
Historical practice points in the opposite direction. George Washington made recess appointments to the federal trial courts during the First Congress, and in 1795 made a recess appointment of John Rutledge—who like Washington had been a delegate to the Philadelphia Convention—to be America’s second Chief Justice. After participating in several cases in that capacity, Rutledge was rejected by the Senate, in part on the basis of intemperate remarks he made while serving as Chief Justice about the Jay Treaty, and so his tenure lasted only a few months. Though Rutledge’s experience could easily have raised concerns about the independence of recess appointees—what if he’d had to decide a case about the Jay Treaty with the Senate watching his every move?—there apparently is no record of any contemporaries arguing that recess appointments of federal judges violate Article III, though nor were there any explicit endorsements or constitutional justifications for the practice, by contrast to the First Congress’s discussion legislative prayer and the Establishment Clause relied on by the Supreme Court in Marsh v. Chambers (1983).
The practice continued healthily through the 1950s, when Chief Justice Warren and Justices Brennan and Stewart were placed on the Court through recess appointments. (Senator McCarthy attempted to grill Brennan on Communism during his confirmation hearings, while Brennan was already acting as a Justice and participating in cases on Communism. And what if Warren had decided Brown v. Board of Education prior to his Senate confirmation, with his job hanging in the balance?) All told, there have been over 300 recess appointments to the federal courts.
Yet since the Kennedy Administration there have been only a few recess appointments of federal judges, perhaps indicating constitutional unease about the idea—though three recess appointments have been made to the Courts of Appeals since 2000. (Judges Gregory and Pryor were ultimately confirmed, while Judge Pickering was blocked by Senate Democrats.) Three courts of appeals in the past half-century, relying heavily on the ultra-strong historical pedigree I’ve described, and over numerous dissents, have upheld the exercise of the federal judicial power by recess appointees against challenges by litigants who lost cases in which those judges had participated. See Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004) (en banc) (upholding the recess appointment of Judge Pryor); United States v. Woodley, 751 F.2d 1008 (9th Cir. 1985) (en banc); United States v. Allocco, 305 F.2d 704 (2d Cir. 1962). Excepting the Ninth Circuit panel decision rejected by the en banc court in Woodley, see 726 F.2d 1328 (9th Cir. 1983), no court to my knowledge has ever held recess appointments of federal judges, or the exercise by such temporary judges of the federal judicial power, to violate Article III or any other provision, such as the Due Process Clause.
The Supreme Court, as you’ll have guessed, has never addressed this question. When it denied cert in Evans in 2005, Justice Stevens wrote an opinion respecting the denial reiterating that a denial implies no view of the merits and stating that the case “raise[d] significant constitutional questions.” 544 U.S. 2244. The Court’s later decision in Caperton v. Massey (2009) pairs well with Stern v. Marshall in illustrating the current Court’s exceptionally strong concern for judicial independence and discomfort with judges whose independence might be less than that provided by Article III (though only one Justice present for both cases–Justice Kennedy–views both cases as correctly decided!). On the other hand, the federal judiciary has arguably been ill-served by the Senate’s refusal in recent years to act on judicial nominations, and 223 years of history and three circuit court decisions support the proposition that the Recess Appointments Clause empowers the President to bypass the Senate (temporarily) with judicial appointments. What the Supreme Court would do if another such case arose is anybody’s guess.