Recess Appointments of Article III Judges

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Article II, Section 2, Clause 3:

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.

Federal judges clearly fall within the terms of the Recess Appointments Clause, in the sense that the Clause broadly authorizes temporary appointments for “all Vacancies.” Nonetheless, other constitutional provisions could suggest hesitation before applying the Clause to Article III judges—although historically, Presidents have in fact made recess appointments to Article III courts.1 The constitutional concern stems from the fact that Article III judges are appointed “during good behavior,” subject only to removal through impeachment.2 A judge, however, who is given a recess appointment may be “removed” by the Senate’s failure to advise and consent to his appointment; moreover, on the bench, prior to Senate confirmation, he or she may be subject to influence not felt by other judges. Although the Supreme Court has not considered this issue, some federal appeals courts have rejected constitutional attacks upon the status of federal judges given recess appointments.3

1: See generally, e.g., Edward A. Hartnett, Recess Appointments of Article III Judges: Three Constitutional Questions, 26 Cardozo L. Rev. 377 (2005).
2: See ArtIII.S1.10.2.1 Overview of Good Behavior Clause.
3: United States v. Woodley, 751 F.2d 1008, 1012 (9th Cir. 1985) (en banc), cert. denied, 475 U.S. 1048 (1986). Other cases holding that the President’s power under the Recess Appointments Clause extends to filling judicial vacancies in Article III courts include United States v. Allocco, 305 F.2d 704 (2d Cir. 1962), cert. denied, 371 U.S. 964 (1963), and Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004), cert. denied, 544 U.S. 942 (2005). The opinions in the courts of appeals provide a wealth of data on the historical practice of giving recess appointments to judges, including the developments in the Eisenhower Administration, when three Justices, Earl Warren, William Brennan, and Potter Stewart, were so appointed and later confirmed after participation on the Court. The Senate in 1960 adopted a “sense of the Senate” resolution suggesting that the practice was not a good idea. 106 Cong. Rec. 18130–18145 (1960).