On January 16, President Bush made a recess appointment to the federal judiciary, the first such appointment to be made in three years. After years of delay at the hands of Senate Democrats, the President recess-appointed Judge Charles Pickering to the Fifth Circuit Court of Appeals. His nomination for a permanent position on the bench will remain pending while he serves as a recess appointee during 2004.
The PresidentÂ’s base has long hoped for just such an appointment to overcome several simultaneous filibusters of the PresidentÂ’s judicial nominees. In addition to Pickering, the Democratic minority still holds the nominations of four eminently qualified jurists hostage: Justice Priscilla Owen, Justice Janice Rogers Brown, Judge Carolyn Kuhl, and Attorney General William Pryor. A sixth filibustered candidate, Miguel Estrada, withdrew his nomination last fall.
The DemocratsÂ’ filibusters are unprecedented. President BushÂ’s recess appointment, on the other hand, is not out of the ordinary.
More than 300 judicial recess appointments have been made to the federal courts since the founding of the country. George Washington made a total of nine recess appointments to the federal judiciary. Two of these were to Supreme Court positions. All but one of these judges were later confirmed to permanent positions on the bench. The first five presidents made a total of twenty-nine judicial recess appointments. In all, fifteen Supreme Court justices have been recess-appointed. Fourteen of these were subsequently confirmed by the Senate.
Recess appointments of judges are not new. They are not unconstitutional. They did, however, fall into disuse for a few decades.
Lyndon B. Johnson was the last president to use his Recess Appointments power to appoint judges on a relatively consistent basis. He recess-appointed four judges during his term in office. President Carter was the next to use his Recess Appointments power in this fashion. He recess-appointed one judge. In late 2000, just as he was leaving office, President Clinton made the last recess appointment of a federal judge. He appointed Roger Gregory to the Fourth Circuit.
At the time of Clinton’s recess appointment, Democrats defended the appointment vehemently—as forcefully as they now oppose President Bush’s appointment of Pickering. In 2000, Senator Tom Daschle told Meet the Press’s Tim Russert, “You should know that 300 justices have been recess-appointed, [including] 11 Supreme Court nominees. . . . So we do this fairly commonly.” He acknowledged that the Senate’s role of “Advice and Consent” is important, but in this case, “There hasn’t been consent.” Since then, the Senator has changed his tune. Instead, he has blasted Bush for “exploit[ing] any procedural tactic in order to pack the courts with right-wing ideologues.” The appointment, he fumes, “circumvent[s]” the Senate and “confirm[s] that [Bush] has no interest in working in a bipartisan manner to appoint moderate judges who will uphold the law.”
It should be noted, in all fairness, that several Republicans have done a similar about-face since 2000, when they strongly criticized President ClintonÂ’s action. They are presumably eating their words now.
Despite the spin from both sides, was the President justified in recess appointing Pickering? The answer is a resounding “yes.”
Today, the Fifth Circuit has two vacancies that have been deemed judicial emergencies. Pickering was originally nominated to fill one of these positions on May 25, 2001. (Texas Supreme Court Justice Priscilla Owen, another filibuster victim, has been nominated for the second position.) Bush has patiently sought to work with the Senate for two-and-a-half years on his nominations. Despite his patience, the Senate is virtually certain to hold up Pickering and Owens until after the election, leaving the Fifth Circuit to contend with two emergency vacancies for at least one more year, if not longer. The Senate is not simply delaying action. It is refusing to act at all.
Democrats have justified their delays of PickeringÂ’s nomination, leveling charges of racism that owe more to fiction than to reality. If Pickering is the deplorable racist that the Senate Democrats say that he is, then why was he unanimously confirmed by the Senate for a federal district court in 1990? Why do some African Americans in Mississippi count themselves among his staunchest supporters? Could it be that Senate Democrats are simply searching for reasons to delay, hoping for the chance to pick their own judges after the 2004 election?
Senators have a constitutional right to oppose a judicial nominee if they feel that he lacks the ability to be a good judge. In fact, they have a duty to oppose a nominee if they feel that he would abuse his position or create law, rather than enforce it. It is, however, an abuse of constitutional power for senators to throw around unsubstantiated charges in the hopes that the judicial confirmation process will be held up until after the next election.
In the event that senators indicate their willingness to engage in such tactics indefinitely, any president, Republican or Democrat, is justified in using his Recess Appointments power to ensure that the judiciary is able to operate efficiently while the political wrangling persists.
Unfortunately, the events of the past four years have made it likely that future presidents will make recess appointments well before they are justified, in order to avoid the type of ideologically motivated filibusters of which Judge Pickering became a target. Although the president should be free to use the Recess Appointments power for all the historical reasons cited above, a degree of discretion should also be used. That discretion may have already become yet another casualty of politics.
Opinions expressed do not necessarily reflect those of the 91ÆÞÓÑ Institute.