The ‘recess appointment’ issue remains unresolved
The Supreme Court has had an unusually busy week. First there was the announcement that the justices would not consider terrorism suspect Zacarias Moussaoui’s attempt to question al Queda prisoners as part of his defense. Today the high court, as expected, turned down the Schiavo case.
But I was hoping, perhaps naively, that I could shift gears back to the justices’ announcement relating to wrangling over Bush’s judicial nominees.
The Supreme Court has decided to stay out of the bitter fight over judicial nominations, at least for now, announcing [Monday] that it will not hear three challenges to the right of one of President Bush’s appointees to sit on the federal appeals court.
The decision, which came nine months after the first of the challenges reached the Supreme Court, means that Judge William H. Pryor Jr. of the U.S. Court of Appeals for the 11th Circuit, who was appointed by Bush during a February 2004 Senate recess, may remain on the bench. His appointment expires next January.
In this case, litigants who had business before the 11th Circuit in general and Pryor in particular, said the former Alabama attorney general was not placed on the bench legitimately. An 11th Circuit ruling from last October disagreed and the high court took a pass this week, allowing the appeals court ruling to stand.
But the issue of recess appointments remains controversial and in need of some clarification, particularly as the political fight over judicial nominees rages on and the White House continues to contemplate its options.
As many of you no doubt recall, Bush decided to circumvent Dem opposition to Pryor and Charles Pickering by simply appointing them to the federal bench while the Senate was on a recess. Though these “recess appointments” only last one year, and Pickering ended up retiring anyway, it was one of Bush’s more audacious moves in dealing with Senate opposition to his most controversial would-be judges. Indeed, it was an unprecedented step — no other president has ever circumvented the Senate to appoint controversial judges to the federal bench before.
The Constitution allows presidents to make recess appointments, but the question comes down to which recess, or more accurately, what kind of recess, the Constitution was referring to.
Article II, Sec. 2, of the Constitution says, “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.” Notice that it says, “the recess,” not “a recess.”
When Bush appointed Pryor to the bench, the Senate was off for a 10-day period. These mid-session breaks are routine throughout the legislative session. When the Founding Fathers empowered presidents to make recess appointments, was this what they were referring to? Almost certainly not.
In the early days of the country, framers saw recesses that could last months and wanted presidents to be able to fill key positions temporarily in emergency situations without the Senate’s “advice and consent.” There’s a lengthy break following the final adjournment for the legislative session. This is “the recess.” The provision was not about giving presidents the authority to evade the legislative process when the White House got irritated with the Senate minority. This president disagrees, of course, and believes he can abuse the power to make appointments whenever he pleases.
Unfortunately, with the Supreme Court taking a pass on the issue this week, the constitutional ambiguity will continue to linger, though there is a hint of hope that the justices will take on the issue at some point down the road.
In a statement accompanying the cert denial, Justice John Paul Stevens emphasized the court did not necessarily reject the case because the appeal lacked merit. He suggested justices might be interested in hearing the case later when the appeals have run their full course in the lower courts.
“It would be a mistake to assume that our disposition of this petition constitutes a decision on the merits of whether the president has the constitutional authority to fill future (judicial) vacancies, such as vacancies on this court,” Stevens wrote.
It sounds like the door may be opening a crack.
In the meantime, Bush has renominated Pryor for a permanent slot on the bench. He’s almost certain to generate another filibuster.