- Let me begin with a story, part fact, part fancy. Let’s call it . . .
A Tale of Two Law Clerks Like all good postmodern tales, this one begins out of sequence. So let’s . . .
Fast Forward--The Year: 2035. The Place: Washington, the 20th Floor of the New Supreme Court Office Building.
The clerk sat before the desk. On the other side, gazing out the window at the Mall, sat the Justice, white hair and deeply lined black face--at 93 years of age, still hale. It was the clerk’s first day, and she worked up the courage to ask a question. Two of her colleagues sat nervously beside her. “Your honor,” she began, “can you tell us about life tenure. I mean, Professor Oman told us about the Crisis of ’03, but you actually lived through it. Is it true that you are the only federal judge who still has life tenure?”
“Not yet,” the Justice laughed. “Jeff Sutton is still technically on senior status. But almost.” He turned away from the clerk, and stared out the window at the black obelisk occupying the space where the Capitol once stood. “I know that people say it started in ’03. Nate, er, your Professor Oman, probably knows more about the political part of that than I do. It can be pretty isolated here.” Justice Clarence Thomas swiveled and faced the clerk, “And anyway, it really all started back in 1985, when the Ninth Circuit decided a case called United States versus Woodley. It was an en banc and in those days that meant something. Woodley, you know, held that recess appointments to federal courts are constitutional, and boy did that become important. You see . . .”
Reverse--The Year: 1985. The Place: Los Angeles, the 12th Floor of the Old United States Courthouse.
The clerk sat before the desk. On the other side, gazing out the window at the mountains outlined in the smog sat the Judge, a vigorous and alert man in his 50s. The clerk was in the office to get an assignment. It was early in his clerkship, and he was eager and just a bit nervous.
“Woodley, said the Judge. “I’d like you to work on United States versus Woodley. It’s gone en banc, and the Court has voted to reverse the panel decision. My decision!"
“What’s it about?” asked the clerk.
“It’s about whether Article III of the Constitution means something,” answered Judge William Norris. “And I think it does. It’s about whether judges without life tenure can serve on Article III courts. And I think they can’t. Here is what happened . . . ”
Before I go any further, I need to make a disclosure. I was the second clerk. I drafted William Norris’s dissenting opinion in United States v. Woodley. That fact makes it difficult for me to be completely objective about the question that I feel compelled to address in this post: Is it constitutional for the President to make a recess appointment to an Article III Court? In 1985, I believed that the independence of the federal judiciary served a crucial constitutional function, and I still believe that today. In 1985, I saw that it was not easy to make out the case that recess appointments to the judiciary are unconstitutional; those difficulties loom even larger today. I will do my very best to be objective, but you should know that I have been thinking about this issue for almost 18 years, that my work is at stake, and that my pride is on the line. I will return to our Tale of Two Clerks at the end of this post, but for now, on to the analysis!
The question as to whether recess appointments are constitutional implicates two provisions of the Constitution--the recess appointments clause and Article III. The best way to begin is simply to lay out the text. Then we can move to interpretation.
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 their next Session.” U.S. Const. art. II, § 2, cl. 3.
The Good Behavior and Undiminished Compensation Clauses: "The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office." U.S. Const. art. III, § 1.
What do these clauses mean? When I drafted the dissenting opinion in United States v. Woodley, here is what I thought. The usual understanding of Article III, Section 1, is that it confers life tenure on Article III judges. From that fact, a corollary could be inferred: the good behavior clause prohibits anyone without life tenure from serving as an Article III judge. Using similar reasoning, we could infer from the guarantee of undiminished compensation a prohibition on anyone whose compensation might be diminished from serving as an Article III judge. Recess appointees lack life tenure and Congress has not guaranteed them undiminished compensation--in fact, Congress has tried to deny some recess appointees any compensation at all. Therefore, the text of Article III, Section 1, prohibits recess appointees from exercising the judicial power of the United States.
But what about the recess appointments clause? That clause applies to "all Vacancies that may happen during the Recess of the Senate" and thus, the recess appointments clause would appear to apply to judicial vacancies as well. How can we reconcile the language of the two clauses?
--General versus Specific. We could try to argue that one clause is more specific than the other, but this stratagem is of no avail. Article III is specific to judges, but makes no mention of vacancies. The recess appointments clause is specific as to vacancies, but makes no mention of judges.
--Absolute versus Qualified. We might try to argue that the recess appointments clause is absolute, and therefore, the recess appointments clause must give way. But this argument does not work either. The recess appointments clause says "all vacancies" and therefore is every bit as unqualified as is Article III. In fact, the recess appoints clause by using "all" seems to have a bit of an edge on the basis of this argument.
Neither of these tried and true techniques of textual adjustment will do the trick. Is there any other way to reconcile the two clauses. Here is an interesting fact. The argument began with the assumption that Article III grants life tenure to federal judges. But it doesn't. All Article III does is grant tenure during good behavior. In order to determine the meaning of the good behavior clause, we need to construe it intratextually by juxtaposing it with the impeachment clause. Let's take a look at that now:
The Impeachment Clause: The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors. U.S. Const. Article 2, § 4.
The guarantee of life tenure for confirmed Article III judges results from the operation of the good behavior clause with the impeachment clause. Read together they lead to the inescapable conclusion that once confirmed an Article III judge cannot be removed except by impeachment--and hence, confirmed Article III judges have life tenure.
But what about recess appointees? Once again, we can proceed intratextually, adding now the recess appointments clause to the mix. Recess appointees have terms that are guaranteed through the end of the next Session of the Senate, because they are civil officers of the United States, they may only be removed before that date by impeachment. This interpretation reconciles the three clauses. The good behavior clause interacts with the impeachment clause and the recess appointments clause to produce a consistent and coherent meaning for the text of all three provisions.
Hold your horses! What about the corollary of the good behavior clause? Doesn't that prohibit anyone without life tenure from serving as an Article III judge? I wish it did. But here is the problem. The corollary isn't anywhere in Article III. The good behavior clause is it. That's all she wrote. The corollary accounts for life tenure for confirmed judges, but results in a direct collision between two clauses, if it is applied to recess appointees. The alternative interpretation that I have offered here accounts for life tenure, and makes the constitution consistent. The text of the Constitution does not support the proposition that recess appointments are unconstitutional. When I drafted the dissenting opinion in Woodley, I finessed this problem by arguing that the text was inconclusive. I still believe that. By itself, the text does not close the door on the argument that recess appointments are unconstitutional. We still need to consider history and function.
What about the history of recess appointments to the judiciary? History plays two distinct roles in constitutional interpretation. First, history is a guide to original meaning. Second, history can establish a constitutional tradition, and hence is a guide to the values we summarize by the phrase, the rule of law. Both uses of history are relevant to the constitutionality of recess appointments to Article III courts:
Judge Norris's dissent in Woodley argues that there the contemporaneous writings of the framers and ratifiers do not provide evidence of any specific intent with respect to the interaction of Article III and the recess appointments clause. I stick by that conclusion today. But there is another piece of evidence that gave me fits when I was drafting the Woodley dissent. The first President, George Washington, made recess appointments to the judiciary. Here is a quote from the majority en banc opinion:
In 1789, shortly after ratification of the Constitution, George Washington, who had served as President of the Constitutional Convention, exercised his power under the recess provision. During the recess between the sessions of the First Congress, he conferred three recess district judge commissions. 30 The Writings of George Washington, 457-58, 473, 485 n. 75 (J. Fitzpatrick ed. 1939). At the time of these appointments, Edmund Randolph and two contributors to The Federalist, Alexander Hamilton and John Jay, served as members of President Washington's Cabinet. There is no evidence that they doubted the constitutionality of the recess appointments. Moreover, the district court judges were confirmed upon the return of the Senate without objection to their recess appointments. 1 Executive Journal of the Senate 38, 40 (1790). It is further noteworthy that President Washington's recess appointments of Justice Johnson in 1791 and of Chief Justice Rutledge in 1795 went unchallenged
The Supreme Court has been fairly consistent with respect to this sort of evidence about early historical practice and for good reason--in some ways it gives us the best possible evidence about the original meaning of the Constitution.
What argument can be made in reply? Here is the relevant text from Judge Norris's dissent:
In the case at hand, the historical record fails to inform us whether that the Framers considered the possibility that recess appointments could violate Article III. Indeed, the majority is careful to observe that these appointments by President Washington were made without objection or apparent consideration of the potential conflict with Article III. This blank record stands in sharp contrast with the full record of plenary consideration given by the First Congress to the First Amendment implications of appointing a legislative chaplain. Thus, the early historical practice of recess appointments to the judiciary has not been "infused with power" by the considered judgment of the Framers. As Marsh suggests, such a practice is entitled to less deference than a practice that we know was "considered carefully" by the Framers. Marsh, 103 S.Ct. at 3335. Moreover, the first legislative chaplain was appointed by the very same body-- the First Congress--that proposed the Bill of Rights. There is no reason to credit George Washington with any special insight into how the Framers intended the recess appointment power of Article II to interact with the salary and tenure provisions of Article III.
Not bad, considering what there was to work with. But look at the moves that the Woodley dissent was forced to make. First, the dissent relies on the fact that no one objected. It is absolutely true that this might mean that a grave constitutional problem was overlooked. I thought that in 1985 and I still think it today. But it surely is evidence that the Washington, Randolph, Jay, and Hamilton read the two clauses as textually consistent. That's no accident. The two clauses--as we have seen--are textually consistent. Second, the dissent says that George Washington had no "special insight into how the Framers intended the recess appointment power of Article II to interact with the salary and tenure provisions of Article III." That sentence made me nervous when I drafted it. It's true, but it is misleading for two reasons: (1) Washington wasn't alone--two of the authors of the Federalist Papers and his Attorney General were in on the recess appointments decisions; (2) Washington was the Chair of the Constitutional Convention in Philadelphia. Does that give him "special insight"? Probably not. But special insight isn't the standard. Do Washington's recess appointments provide evidence of original meaning? The Woodley dissent had to concede that they are some evidence of original meaning. That now seems to be a bit of an understatement.
Tradition and the Rule of Law.
History has another role to play in Constitutional interpretation. The Supreme Court will frequently defer to a long historical tradition or practice--even though there are arguments that the tradition contravenes the text or spirit of the Constitution. There have been a lot of recess appointments over a very long time. Although the argument has occasionally been made that recess appointments are unconstitutional, that argument has almost always failed. The Ninth and Second Circuits have rejected constitutional challenges to recess appointments; no court of appeals has sustained a challenge. Republicans and Democrats have made use of the recess appointments power. Supreme Court Justices have been recess appointees. Chief Justices have been recess appointees. If a long historical tradition suggests that a practice is constitutional, then this provides additional evidence that recess judicial appointments are constitutional. The Woodley dissent essentially conceded this point, but argued that it was outweighed by an important constitutional value--judicial independence.
And this brings mean to the third member of the trilogy, text, history, and function:
The strongest argument in the Woodley dissent was that the independence of Article III judges is important to the Constitutional scheme. I believed that in 1985 and I believe it today. In fact, I think that I have a much deeper appreciation of the reasoning behind the good behavior clause today than I had in 1985. Judicial independence is important because we want judges to resist the politicization of the judiciary. We want judges who will decide the cases before them on the basis of law and not politics. We need judges with he judicial virtues and especially with the virtue of justice--the disposition to decide disputes on the basis of the law and to resist the temptation to decide on the basis of personal preference or political ideology. But even the most courageous judges will serve poorly as the guardians of individual liberty if they can be removed at the whim of the political branches. So far, so good. Judicial independence disfavors recess judicial appointments. Is there any constitutional value on the other side of the scale?
When I drafted the dissenting opinion in Woodley it seemed to me that recess appointments to the judiciary served no valuable constitutional function. The only good reason for recess appointments, I thought, would simply be efficiency and convenience. Recess appointments would allow judicial vacancies to be filled during the then-longer recesses of the Senate. In the event of a freak accident, it could take weeks for the Senate to reconvene. But today, the Senate could come back in session in a day or two in a true emergency. And the federal judiciary and the Supreme Court are both much larger, and hence under almost any imaginable circumstance they could function for weeks or even months with vacancies unfilled. So, it seemed to me that the recess judicial appointments were an unqualified bad as a matter of constitutional policy. But I now see this issue through different eyes. Step back for a moment and consider the constitutional values implicated by recess judicial appointments:
--Checks and Balances. The Senate's power to advise and consents serves a checking function on Presidential power.
--Judicial Independence. The good behavior clause serves to promote the rule of law by giving judges independence from the political branches.
--Functional Continuity. The recess appointments clause insures that the judiciary can continue to function in the event the Senate cannot or will not confirm nominees to judicial office.
No system can simultaneously realize all three constitutional values. Checks and balances create a risk of deadlock and constitutional crisis. The recess appointments clause insures functional continuity by creating a deadlock breaking mechanism, but that mechanism compromises judicial independence. If the President could make lifetime recess appointments, that would provide judicial independence but do greater damage to checks and balances. The Woodley dissent simply did not consider the possibility that the politicization of the judiciary might someday produce a persistent deadlock, resulting in the depopulation of the judiciary. If a minority of the Senate insists that advice and consent means control, then the Constitution does not demand that the President back down and appoint judges that share the political ideology of his political opponents. Nor does the Constitution require the President to create judicial emergencies. The Constitution provides a mechanism that can avert temporary crisis. Whereas in 1985, I thought that recess appointments served no constitutional value while they impinged on judicial independence, I now think the situation is more complicated. And that leads me to . . .
An Uncomfortable Conclusion
Let's review. The text of the three clauses, the recess appointments clause, the good behavior clause, and the impeachment clause can be read in two ways. The three clauses are consistent if we read good behavior so as to guarantee life tenure for confirmed judges and to guarantee tenure until the end of the next session of the Senate for recess appointees. We can also read the three clauses so as to produce a contradiction between the good behavior clause and the recess appointments clause. From a textualist standpoint, it is clear that the former interpretation is to be preferred to the later. History provides us with strong evidence that the original understanding of the two clauses was that the President had the power to make recess judicial appointments--indeed, that was the practice almost immediately after the Constitution's adoption. History also tells us that the practice of recess appointments is a long-standing historical tradition; Presidents of all parties and at many different times during the nation's history have engaged in the practice of making recess appointments to every federal court, including the Supreme Court. With respect to constitutional values, there is an inherent and irresolvable conflict between the constitutional values of checks and balances, judicial independence, and functional continuity, allowing recess judicial appointments provides an imperfect compromise between the three values. In sum, the text and history of the Constitution support recess judicial appointments. An analysis of the relevant constitutional values suggests that recess judicial appointments represent an imperfect compromise solution to an inherent tension between three important principles. As I now see it, these considerations can only lead to one conclusion--recess judicial appointments are constitutional, but should be used sparingly--except perhaps in unusual circumstances.
A Possible World--Article III Courts Without Life Tenure
We need to think seriously about the implications of wholesale use of the recess appointments power for judicial office. The time when the implications of this possibility could safely be ignored has already passed. Indeed, thinking about the implications of recess judicial appointments is part of the process that can prevent them from coming to pass. So let's imagine a possible world where recess appointments become the norm rather than the exception. Here is how it might start:
Phase One: Recess Appointments as Retaliation for Democratic Obstruction
The judicial selection process is in a downward spiral of politicization. Republicans denied President Clinton floor votes on many of his nominees and Democrats have escalated, resorting to wholesale use of blueslipping and the filibuster. What's next? Perhaps everyone will wake up and smell the coffee. It may be that Democrats and Republicans are about to reach a historic compromise on the confirmation process, but as of today, it sure doesn't look like everyone is about to become cooperative. So let's try a thought experiment. What if President Bush did threaten the use of recess appointments and the Democrats not only didn't back down, but escalated--filibustering every nominee for judicial office? The President would have few alternatives. He could back down and start nominating judges whose political ideologies were acceptable to Democrats, but that hardly seems likely. He could allow the Democrats to block all nominees and simply allow judicial vacancies to go unfilled until after 2004--but that seems both irresponsible and the equivalent of political surrender. He could get lucky and persuade a few Democrats to vote for cloture--but so far that strategy has been unsuccessful. Or he could make recess appointments. Let's suppose that is the option chosen by the President.
Phase Two: Democratic Reaction
How would the Democrats react to wholesale use of the recess appointments power? Here are the options:
--Democrats could cave in, and start giving the President floor votes. That seems terribly unlikely, given that Democrats are likely to see the President's move as outrageous escalation of the confirmation wars.
--Democrats could try the litigation options, but that seems unlikely to be successful, although there might well be political benefits from the effort.
--Democrats could continue to filibuster and make the recess appointments an issue in the 2004 election. After pursuing the litigation strategy, this seems like the most likely outcome. So what would happen next?
Phase Three: After the 2004 Election
At this point it gets complicated, because either Democrats or Republicans could win the Presidency and/or the Senate. We need to explore several scenarios:
--Scenario One: If the President is reelected, and the Republicans do not gain the 60th vote in the Senate, then Democrats have two options:
+ Variation 1-A: Back down and let the President have floor votes that he is sure to win, or
+ Variation 1-B: Continue to filibuster the Presidents nominees--with the President countering by continuing the practice of making recess appointees.
--Scenario Two: If the President is reelected, and the Republicans do gain the 60th vote in the Senate, the President is likely to use the opportunity to appoint candidates that appeal to the Republican base. In Scenario Two, the use of recess appointments would end, until the next stalemate develops.
--Scenario Three: If the President is not reelected, and the Democrats do not gain control of the Senate (or fall short of 60 votes), then Republicans have two choices:
+ Variation 3-A: The Republicans back down and give the Democrats floor votes. This seems unlikely; the Republicans are likely to be in no mood to compromise after the Democratic filibusters and subsequent electoral victory.
+ Variation 3-B: The Republicans filibuster the Democratic President's nominees. This puts Republicans in the same position as the Democrats were in Phase Two and the next big event would be the election of 2008.
--Scenario Four: The President is not reelected and the Democrats get 60+ seats in the Senate. This is the mirror image of Scenario Two. The Democratic President will appoint judges and justices who play to the Democratic base.
Phase Four: Permanent Recess Appointments
Suppose that electoral politics does not break the stalemate. That is, suppose that neither the Democrats nor the Republicans are able to control the Presidency and enough Senate votes to break a filibuster. Suppose further that the opposition party will not back down. The downward spiral of politicization has progressed so far that a political compromise is no longer feasible. Where would we find ourselves? In a brave new world, where recess appointments were the rule and not the exception. Judges and Justices would serve for terms that would last up to two years--beginning with the first recess in one Senate Session and ending when the next Session terminates. When the Presidency turned over, the power to control these judgeships would also turn over. There would be a wholesale change in the composition of the judiciary. The legacy life-term judges would continue in office, but the recess-appointment judgeships would be filled by the new President, who would appoint members of his own party. As time passed, more and more of the federal bench would be occupied by recess appointees as the legacy life-term judges resigned, retired, or died in office.
Article III Without Life Tenure
What would we make of this brave new world? Here are some thoughts:
Of course, our first reaction is horror. We have all been taught that life tenure is a cornerstone of the Philadelphia Plan. Without life tenure, the federal judiciary would be unable to serve it's constitutional function as the guardians of individual liberty. Without life tenure, the federal judiciary would become politicized. Without life tenure, the rule of law would be fundamentally compromised by judges who decided on the basis of political ideology rather than the law.
On the Other Hand
But wait a second. The way that we got into this mess begins with a judiciary that is already being politicized. If both parties are willing to appoint virtuous judges, who are committed to the rule of law, relying on text, history, and precedent rather than personal ideology, then we would never enter a downward spiral of politicization. The downward spiral--the confirmation wars--are a symptom of the deep politicization of the federal judiciary that has occurred over a period of decades. Once the parties woke up to the fact that federal judges were becoming political actors, then they realized that political control of the composition of a judiciary with life tenure was one of the great prizes of control of the Presidency. But once the parties realize that, a further realization follows. The ability to block judicial nominees is one of the great benefits of holding at least 41 seats in the Senate.
Here is the crucial insight.
Once the judiciary has become politicized, it is no longer clear that lifetime tenure is justified. We want lifetime tenure to safeguard the rule of law. Lifetime tenure looks like a pretty silly idea if it is being used to safeguard the power of judges who have been thoroughly politicized. If the judiciary is just another political branch, then it should be politically responsive. Let me repeat that idea in a more pungent form. If the judiciary is just another political branch, then it is appropriate for judges to be turned out of office every four years. Politicized judges pose a countermajoritarian difficulty. Politicized judges with life tenure are the most dangerous branch. But the recess appointments clause when combined with advice and consent and the filibuster provides a self-correcting constitutional mechanism. If the judiciary becomes thoroughly corrupt and partisan politics prevents the political branches from agreeing on the appointment and confirmation of judges devoted to the rule of law, then the constitutional solution is to replace lifetime tenure with judicial terms for a limited period of years--and that solution is already available in the recess appointments clause. Let me be clear: I am not arguing for recess judicial appointments. I am arguing against them. But I am arguing against recess judicial appointments because I am in favor of the rule of law. If I am given the Hobson's choice--politicized judging with life tenure or politicized judging without life tenure--the choice is painful but clear. The point of the thought experiment is that we should avoid the Hobson's choice. How can we avoid it? Compromise. Both parties should agree on two principles of judicial selection. Principle One: judges should be selected on the basis of their possession of the judicial virtues, and especially the virtue of justice--fidelity to the rule of law. Principle Two: each party should agree to allow the nominees of the other party to come to a floor vote, and Senators should vote to confirm--unless there is good evidence that the nominee lacks the constituent elements of good judicial character. The possible world of Article III without Life Tenure is not the only ending point for the downward spiral of politicization, but contemplating this possibility can and should serve a salutary purpose. It is in the long run interest of both political parties to call off the confirmation wars. The time for escalation should end, and the time for compromise should begin.
A Tale of Two Law Clerks
And what happens to our two law clerks?
From Past to Present
The second clerk is alive and well. In 1985, he thought that Woodley was an important case in principle but a curiosity in practice. Today, he realizes that the issue that the Ninth Circuit grappled with in 1985 was of profound importance. The recess appointments clause is, in reality, one of the most important features of the Constitution. It's deadlock breaking function may only come into play in the most extreme of times, but it is exactly in those times that a workable constitutional framework is crucial. In 1985, the second clerk had romantic notions about the role of the judiciary. He imagined innovative judges who would wield the law like a sword, striking down injustice with newly minted constitutional rights. In 2003, the second clerk is more skeptical about the transformative role of the law. Today, he is more concerned about text, history, and precedent, and less enamored of new and fancy theories. He has the same ideals but a different view of the role and rule of law.
Back to the Future
And in 2035 . . .
. . . and Professor Oman suggested that the crisis of 2003 actually led to the solution of the countermajoritarian difficulty," the clerk continued, no longer nervous but excited by the exchange of ideas.
"I'm not so sure about that," the Justice replied. "But I do know that this place is a whole lot different now that Justices come and go every couple of years. Why, some of these young ones, I hardly learn their names before a new bunch arrives." He swiveled again, and looked down through five inches of bullet proof glass upon the Mall, eerie now in its emptiness. "Yep, it sure has changed."
For more on the confirmation wars, see Breaking the Deadlock: Reflections on the Confirmation Wars. For a guide to all my posts on judicial selection, click here.