Judicial Recess Appointments: A Legal Overview (CRS Report for Congress)
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| Release Date |
June 30, 2005 |
| Report Number |
RL32971 |
| Report Type |
Report |
| Authors |
T.J. Halstead, American Law Division |
| Source Agency |
Congressional Research Service |
Summary:
Article II of the Constitution provides that the President "shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and counsels, 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." As a supplement to this authority, the Constitution further provides that "[t]he 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." The Recess Appointments Clause was designed to enable the President to ensure the unfettered operation of the government during periods when the Senate was not in session and therefore unable to perform its advice and consent function. In addition to fostering administrative continuity, Presidents have exercised authority under the Recess Appointments Clause for political purposes, appointing officials who might be viewed unfavorably by the Senate.
While the President's exercise of the recess appointment power in any context may give rise to controversy, the use of the Recess Appointments Clause to appoint judges to temporary positions on Article III courts can be particularly politically contentious. Presidents have made over 300 recess appointments to the federal judiciary, including twelve to the Supreme Court, since the first Administration of George Washington. The practice of making such appointments lessened considerably after the Eisenhower Administration, with only four judicial recess appointments having occurred since 1960. Despite the controversy attendant to judicial recess appointments, the President's authority to make such appointments has been challenged only in a handful of instances, with the most recent litigation arising from President George W. Bush's recess appointment of William H. Pryor to the Court of Appeals for the Eleventh Circuit on February 20, 2004. This report provides an overview of the legal and constitutional issues pertaining to the recess appointment of judges to Article III courts, with a particular focus on the proceedings involving the appointment of Judge Pryor.
