The history and contemporary need for judicial recess appointments

[usregimechange]

"On September 30, 1953, President Dwight D. Eisenhower nominated Warren Chief Justice of the United States under a recess appointment. The Senate confirmed the appointment on March 1, 1954" (Supreme Court Historical Society, 2010, emphasis added).


Overview

"The President’s authority to install judges under the Recess Appointments Clause is well established as a matter of historical practice. In fact, Presidents have made more than 300 recess appointments to the federal judiciary.1

Presidents have used their Recess Appointments power to appoint federal judges since the beginning of the Nation’s history. During recesses of the First Congress, President Washington made three recess appointments to the federal district court. There was no apparent objection by any member of his Cabinet or the Senate, which subsequently confirmed all three for lifetime positions on the bench. President Washington also made two recess appointments to the Supreme Court. Although one of them—Chief Justice John Rutledge—was later denied confirmation for a permanent post, it was not due to objections to the earlier recess appointment.2 The first five Presidents made a total of twenty-nine recess appointments of judges.

Fifteen justices of the Supreme Court—including two Chief Justices—were first appointed by recess appointment. Other than Rutledge, all were subsequently confirmed by the Senate for lifetime positions. Recess appointees to the Supreme Court include Chief Justice Earl Warren and Justices Potter Stewart and William Brennan.

The practice of installing judges by recess appointment has fallen into disuse in recent years, however. Until the 1960s, every single President had used the Recess Appointments power to install judges except for two: William Henry Harrison, who died within a month of taking office, and John Tyler, who succeeded to the office upon Harrison’s death. Since the 1969 inauguration of Richard Nixon, there have been only two recess-appointed federal judges—U.S. District Judge Walter M. Heen, installed by President Jimmy Carter and never confirmed by the Senate, and Judge Roger Gregory, recess-appointed to the Fourth Circuit by President Clinton and subsequently confirmed by the Senate to that same court during the Bush Administration."

(Buck, Ho, McGurk, Ross, and Shanmugam, 2004)

http://www.fed-soc.org/doclib/20070325_recapp.pdf

Contemporary rational

There are multiple federal judicial nominees that have been waiting months after being approved by the Senate Judiciary committee:

Judge Thomas Vanaskie (Dec 2009, vote 16-3)
"Senate panel OKs Judge Vanaskie nomination"
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=102x4170496

Jane Branstetter Stranch (Nov 2009 vote 15 - 4)
"Committee (Judiciary) endorses Nashville attorney (Jane Stranch) for judgeship (US 6th Circuit)"
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x7051822

Judge Denny Chin (Dec 2009, by unanimous consent)
"Senate Judiciary Committee sends Denny Chin's nomination to fill Sotomayor's seat to the full Senate"
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x7199726

Albert Diaz (Jan 2010, by unanimous consent) and
James A. Wynn, Jr. (Jan 2010, vote 18 - 1)
"Senate Judiciary Committee approves 2 Obama 4th Circuit Judicial nominees"
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x7596769

Obama has shown his willingness to wield his Constitutional power by using recess appointments. In doing so he particularly cited nominees who "were approved by Senate committees months ago, yet still await a vote of the Senate."

The US Senate Judiciary committee was recently hijacked by Senate Republicans and hearings were blocked using obscure tactics. Goodwin Liu's hearing had to be rescheduled when the Senate returns from recess. Chairman Leahy recently described how Senate Republicans "have continued their ill-advised protest of meaningful health reform legislation by exploiting parliamentary tactics and Senate Rules, to the detriment of the American people and, in today’s instance, at the expense of American justice" (Senator Leahy Press Release, March 24, 2010).

Judicial appointments are particularly important as the federal courts currently lack more than 100 seats and have significant filing backlogs. This includes scores of "judicial emergencies," where in Circuit courts "adjusted filings per panel are in excess of 700" and in District courts "weighted filings are in excess of 600 per judgeship" (USDOJ OLP, 2010).


Suggestion

It is time for President Obama to seat these judges, on an interim basis, until such time as the Senate can confirm their lifetime appointments. He could do so right now, and he should.

[usregimechange]

1. Let's hope my luck continues, the night before Obama made his first recess appointments...

I posted this:

"Time for some recess appointments"
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x8029796

[LiberalFighter]

2. This article came from the Federalist Society a right wing activist group

I bet they would argue against recess appointments once it is a Democratic President making them.

[usregimechange]

3. I noticed that and noticed when it was written. I thought it was well written though.

:evilgrin:

[usregimechange]

4. Can you imagine, Republicans obstruct Steven's replacement, Obama seats him/her anyway

Can you imagine the temper tantrums that would produce?

[amborin]

5. Liu favors charter schools and vouchers....

[usregimechange]

6. But is otherwise the most liberal nominee so far

[amborin]

7. you're right,

guess he'd be a good choice!

[usregimechange]

8. I think he should send him up now and than to SCOTUS this summer