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TRANSCRIPT
BNo. 02-16424
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, dS CtJURrOFAPPFAI.SEL-P_ENTHCIRCUIT
[. - ..... -. '. _ "l-
IN THE UNITED STATES COURT OF ,z_PPEALS
FOR THE ELEVENTH CIRCUII_ !I mJl_ _, :., /Ut]4
DENIS STEPHENS, ':
Defendant/Appellant;--
'.rllll'dA_ it :Vqll"
V,
PETER EVANS and DETREE JORDAN,
Plaintiff/Appellees.
_,_- _--,., ._ . _ . ]
BRIEF FOR TgE W_,_R_,_NOR LTNI,q_I:tSTACBS ,,__..,',,SUPPORTING THE CO_STI_TK)NAt_.TY O_ '_-D'_'EcP_I_, S-
APPOINTMENT\ AS A_ _,F3_HIS _IURT
THOMAS L. SANSONETTI - • "-_ ...... PETER D. KEISLER
Assistant Attorney General Assistant Attorney General
JEFFREY BOSSERT CLARK
Deputy Assistant Attorney General
J. MICHAEL WIGGINS
Deputy Associate Attorney General
ETHAN G. SHENK_MAN
R. JUSTIN SMITH
Attorneys
Environmental and Natural
Resources Division
Department of Justice
Washington, D.C. 20530
GREGORY G. KATSAS
Deputy Assistant Attorney General
DOUGLAS N. LETTER
(202) 514-3602
MATTHEW M. COLLETTE
(202) 514-4214
Attorneys, Appellate Staff
Civil Division, Room 9008
Department of Justice
Washington, D.C. 20530-0001
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• No. 02-16424, Stephens v. Evans -_
CERTIFICATE OF INTERESTED PERSONS
In addition to the persons listed by the parties and the other amici curiae:
Thomas L. Sansonetti
Peter D. Keisler
Jeffrey Bossert Clark
J. Michael Wiggins
Gregory G. Katsas
Ethan G. Shenkman
R. Justin Smith
Douglas N. Letter
Matthew M. Collette
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TABLE OF CONTENTS
Pages
CERTIFICATE OF INTERESTED PERSONS
INTRODUCTION AND SUMMARY .................................................................... 1
ARGUMENT ........................................................................................................... 4
JUDGE PRYOR'S APPOINTMENT WAS PROPERUNDER THE RECESS APPOINTMENTS CLAUSE .......................................... 4
I. THE RECESS APPOINTMENTS CLAUSE IS NOT LIMITED
TO INTER-SESSION RECESSES OF THE SENATE ............................... 6
A. The Recess Appointments Clause By Its Terms Permits
Appointments During Intra-Session Senate Recesses ........................ 6
B. Longstanding Practice And Precedent Confirm ThePermissibility Of Intra-Session Recess Appointments ........................ 8
C. No Constitutional Provision Restricts The Plain MeaningOf The Word "Recess" To Inter-Session Recesses ........................... 17
D. Intra-Session Recess Appointments Are Also Consistent
With The Purpose of the Recess Appointments Clause .................... 23
II. THE RECESS APPOINTMENTS CLAUSE PERMITS
THE APPOINTMENT OF ARTICLE III JUDGES .................................. 31
A. The Recess Appointments Clause Clearly Permits
The President To Appoint Article III Judges ................................... 32
B. Longstanding Practice And Precedent Confirm The
Permissibility Of Intra-Session Recess Appointments ..................... 34
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C. Judicial Recess Appointments Are Consistent WithArticle III ..................... ,.................................................................... 42
D. Senator Kennedy's Alternative Arguments Are Meritless ................ 47
CONCLUSION ..................................................................................................... 50
CERTIFICATE OF COMPLIANCE .................................................................... 51
CERTIFICATE OF SERVICE .............................................................................. 52
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Cases:
TABLE OF AUTHORITIES
American Ins. Ass 'n v. Garamendi, 539 U.S. 396,
123 S. Ct. 2374 (2003) .................................................................................. 9
Bakerv. Cart', 369 U.S. 186, 82 S. Ct. 691 ......................................................... 48
Bowsherv. Synar, 478 U.S. 714, 106 S. Ct. 3181 (1986) .................................... 14
Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53
S. Ct. 279 (1884) ........................................................................................ 34
Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821) ....................................... 38, 44
Exparte Hennen, 38 U.S. (13 Pet.) 230 (1839) ................................................... 44
Exparte Ward, 173 U.S. 452, 19 S. Ct. 459 (1899) ................................ 39, 40, 41
Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824) .................................................... 6
Gouldv. United States, 19 Ct. CI. 593 (Ct. CI. 1884) ............................... 3, 15, 16
Hampton & Co. v. United States, 276 U.S. 394,
48 S. Ct. 348 (1928) .. ............................................................................ 34, 35
Harris v. Board of Governors of the Fed. Reserve Sys.,938 F.2d 720 (7th Cir. 1991) ....................................................................... 21
Jackman v. Rosenbaum Co., 260 U.S. 22, 43 S. Ct. 9 (1922) ............................. 17
Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974) .......................................... 21
Marsh v. Chambers, 463 U.S. 783, 103 S. Ct. 3330 (1983) .......................... 34, 35
Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816) ........................... 34, 35
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Mistretta v. United States, 488 U.S. 361,109 S. Ct. 647 (1989) ..................... 9, 35
Myers v. United States, 272 U.S. 52, 47 S. Ct. 21 (1926) .............................. 35, 44
Nippon Steel Corp. v. United States International Trade
Commission, 239 F. Supp. 2d 1367 (C.I.T. 2002) ................................... 3, 16
Northern Pipeline Construction Co. v. Marathon Pipe Line
Co., 458 U.S. 50, 102 S. Ct. 2858 (1982) .............................................. 34, 45
Pennsylvania Dep 't of Corrections v. Yeshey, 524 U.S. 206,
118 S. Ct. 1952 (1998) ............................................................................... 27
PGA Tour, Inc. v. Martin, 532 U.S. 661,
121 S. Ct. 1879 (2001) ................................................................................ 27
Plaut v. Spendthrift Farms, lnc., 514 U.S. 211,115 S. Ct. 1447 (1995) .......................................................................... 28, 48
Prout v. Starr, 188 U.S. 537, 23 S. Ct. 398 (1903) .............................................. 44
Staebler 1,. Carter, 464 F. Supp. 585 (D.D.C. 1979) ........................................... 26
Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984),
cert. denied, 470 U.S. 1003, 105 S. Ct. 1354 (1985) ................................... 11
ThePocket Veto Case, 279 U.S. 655, 49 S. Ct. 463 (1929) ....................... 9, 20, 32
United States v. Allocco, 305 F.2d 704 (2d Cir. 1962), cert. denied,
371 U.S. 964, 83 S. Ct. 545 (1963) ..................................................... 4, 6, 42
United States v. Curtis-Wright Export Corp., 299 U.S. 304,
57 S. Ct. 216 (1936) .............................................................................. 34, 35
United States v. Midwest Oil Co., 236 U.S. 459, 35 S. Ct. 309 (1915) ................. 9
United States v. Sprague, 282 U.S. 716, 51 S. Ct. 220 (1931) .............................. 6
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United States v. Woodl_, 751 F.2d 1008 (9th Cir. 1985), cert. denied,475 U.S. 1048, 106 S. Ct. 1269 (1986) ........................................ 3, 5, 36, 43
Veith v. Jubelirer, 124 S. Ct. 1769 (2004) ........................................................... 48
Vermont Agency of Natural Resources v. Stevens, 529 U.S. 765,
120 S. Ct. 1858 (2000) ................................................................................ 35
Walz v. Tax Commission, 397 U.S. 664, 90 S. Ct. 1409 (1970) .......................... 35
Wisconsin v. Pelican his. Co., 127 U.S. 265, 8 S. Ct. 1370 (1888) .................... 34
Wright v. United States, 302U.S. 583, 58 S. Ct. 395 (1938) .............................. 21
Constitutional Provisions:
Art. I, § 4, cl. 2 .............................................................................................. 18,22
Art. I, § 5, cl. 4 ............................................................................ 18, 20, 29, 30, 48
Art. I, § 7, cl. 2 .................................................................................................... 20
Art. II, § 2, cl. 2 ............................................................................................ 32, 43
Art. II, § 2, cl. 3 ...................................................................................... 22, 33, 43
Art. III, § 1 .................................................................................................... 43, 46
Statutes:
5 U.S.C. § 5503(a) ................................................................................... 14, 15, 405 U.S.C. § 5503(a)(2) ........................................................................................... 46
Regulations:
28 C.F.R. § 0.25 ................................................................................................... 13
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Legislative Materials:
28 Comp. Gen. 30 (1948) .............................................................................. 14, 39
39 Cong. Rec. 3823 (1905) .... ......................................................................... 7, 13
136 Cong. Rec. $589 .......................................................................................... 21
136 Cong. Rec. S11,934 ..................................................................................... 21
149 Cong. Rec. SS101 (2003) ............................................................................. 25
149 Cong. Rec. S10455 (July 31, 2003) .............................................................. 49
149 Cong. Rec. S14097 (Nov. 6, 2003) ............................................................... 49
149 Cong. Rec. S14547 ....................................................................................... 25
150 Cong. Rec. S1414 (Feb. 12, 2004) .............................................................. 1, 8
H.R. Con. Res. 361,108th Cong. (2004) .............................................. 1, 8, 13, 22
S. Rep. No. 4389, 58th Cong., 3d Sess. (1905) .................................................... 7
S. Res. 334, 86th Cong., reprinted in 106 Cong.
Rec. 18130 (1960) ....................................................................................... 41
Executive Materials:
10p. Att'y Gen. 632 ........................................................................................... 23
23 Op. Att'y Gen. 599 (1901) .............................................................................. 12
33 Op. Att'y Gen. 20 (1921) .................................................. l 1, 12, 23, 25, 29, 30
41 Op. Att'y Gen. 463 (1960) ........................................................................ 12, 24
13 Op. Off. Legal Counsel 271 (1989) .................................................. ....... 13, 29
16 Op. Off. Legal Counsel 15 (1992) ............................................................ 13, 29
20 Op. Off. Legal Counsel 124 (1996) ............................................. :.................. 13
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30p. Off. Legal Counsel 314 (1979) .................................................................. 13
60p. Off. Legal Counsel 585 (1982) ................................... , ........... . .................. 13
Miscellaneous:
Administrative Office of the United States Courts,
Judicial Emergenicies ................................................................................. 27
S. Buck, Judicial Recess Appointments .............................................................. 36
Congressional Research Service, Intrasession Recess
Appointments 5 (April 23, 2004) .......................................................... passim
Dictionary of the English Language (1755) .......................................................... 7
Executive Journal of the Senate, Vol. I ............................................................... 39
2 Farrand, Records of the United States Constitutional Convention
533 (1937) ................................................................................................... 33
Federalist No. 67 (C. Rossiter ed., 1961) .................................................. 5, 25, 33
Federalist No. 78 (C. Rossiter ed., 1961) ............................................................ 33
Government Printing Office, 2003-2004 Official Congressional
Directoo; 108th Congress .................................................................. passim
G. Gunther, Constitutional Law (12th ed. 1991 ) ................................................ 41
A. Hunt, The Provincial Committees of Safety of the American
Revolution (1904) ........................................................................................ 19
T. Jefferson, Manual of Parliamentary Procedure (2d ed. 1812) ............ 21, 22, 24
11 Journals of the Continental Congress 1774-1789 .......................................... 19
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C. Lincoln, 1 The Constitutional History of New York ....................................... 19
Maryland States Archives, General Session Lists ............................................... 24
G. McRee, Life and Correspondence of James lredell (1857) ........................... 42
Recess Appointments to the Supreme Court - Constitutional
But Unwise?, 10 Stan. L. Rev. 124 (1957) .................................................. 37
Records of the New York Provincial Congress, July 8, 1775, in
Peter Force, II A Documentary History of the English Colonies in
North America (1839). ................................................................................ 19
Riddick's Senate Procedure (1992) ....................................................................... 7
J. Story, 3 Commentaries on the Constitution § 804 (reprinted 1987) ............ 5, 25
Wash. Post (May 19, 2004) .................................................................................. 49
II N. Webster, An American Dictionary of the English Language (1828) ............. 7
30 The Writings of George Washington .............................................................. 37
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IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 02-16424
DENIS STEPHENS,
Defendant/Appellant,
V.
PETER EVANS and DETREE JORDAN,
Plaintiff/Appellees.
BRIEF FOR THE INTERVENOR UNITED STATES
SUPPORTING THE CONSTITUTIONALITY OF JUDGE PRYOR'S
APPOINTMENT AS A JUDGE OF THIS COURT
The United States files this brief to defend the constitutionality of the
President's appoinmaent of William H. Pryor Jr. as a judge of this Court.
INTRODUCTION AND SUMTVIARY
On February 12, 2004, during the second session of the 108th Congress, the
United States Senate "recess or adjourned" until February 23, 2004. H.R. Con. Res.
361, 108th Cong. (2004); see 150 Cong. Rec. S 1415, 2004 WL 257175 (daily ed. Feb.
12, 2004). The Senate Majority Leader concluded that day's proceedings by stating:
"I wish everyone a safe President's Day recess." 150 Cong. Rec. S1414 (daily ed.
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Feb. 12, 2004). On February 20, 2004, while the Senate was still in recess, the
President appointed William H. Pryor Jr. to this Court pursuant to the Recess
Appointments Clause of the Constitution (Art. II, § 2, cl. 3). Judge Pryor was sworn
in shortly thereafter and has been sitting as a member of this Court since then.
In this case, plaintiffs have moved to disqualify Judge Pryor based in part on
a contention that he was not constitutionally appointed. On that point, plaintiffs rely
primarily on a brief amicus curiae filed by Senator Edward Kennedy. This Court
certified to the Attorney General of the United States that the constitutionality of Judge
Pryor's appointment had been drawn into question, and the United States intervened
in order to defend the constitutionality of that appointment.
As explained below, Senator Kennedy errs in his principal contention that the
Recess Appointments Clause permits the President to make appointments only during
inter-session, as opposed to intra-session, recesses of the Senate. By its terms, the
Clause permits the President to make appointments during any Senate "Recess." With
the single exception of de minimis breaks of three days or less, the Constitution does
not distinguish at all among different types of congressional recesses, much less
categorically exclude intra-session recesses from the scope of the Recess
Appointments Clause. Intra-session recess appointments are consistent with the
salutary purpose of the Clause: to ensure a functioning government by facilitating the
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prompt filling of vacancies. They are also consistent with longstanding and essentially
unchallenged historical practice, which includes at least 285 intra-session recess
appointments made by at least 12 different Presidents since 1867. And to the extent
such appointments have been challenged at all, courts unanimously have rejected the
challenges. See Nippon Steel Corp. v. United States lnt '1 Trade Comm 'n, 239 F.
Supp. 2d 1367, 1374 n.13 (C.I.T. 2002); Gouldv. United States, 19 Ct. CI. 593,595
(Ct. C1. 1884).
Senator Kennedy errs further in suggesting that the Recess Appointments
Clause does not authorize the President to appoint Article IIIjudges. By its terms, the
Recess Appointments Clause permits the President "to fill up all vacancies" (emphasis
added), and the Appointments Clause makes clear that the relevant "vacancies" include
positions for "Judges." Moreover, at least 37 Presidents have made a total of over
300 recess appointments of Article III judges, including recess appointments of 15
Supreme Court justices, with virtually no dissent from the Senate. George Washington
alone made at least nine such appointments, including the second Chief Justice of the
United States, whose recess appointment was specifically validated by the Senate.
Based on this clear constitutional text and unbroken historical practice, two courts of
appeals (the only ones to address the question) have held that the Constitution permits
the President to make recess appointments of Article III judges. United States v.
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Woodlev, 751 F.2d 1008 (9th Cir. 1985) (en banc), cert. denied, 475 U.S. 1048, 106
S. Ct. 1269 (1986); United States v. Alloeco, 305 F.2d 704 (2d Cir. 1962), cert.
denied, 371 U.S. 964, 83 S. Ct. 545 (1963).
ARGUMENT
JUDGE PRYOR'S APPOINTMENT WAS PROPER
UNDER THE RECESS APPOINTMENTS CLAUSE
The Appointments Clause 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 Consuls, 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." Art. II, § 2, cl. 2. The Recess
Appointments Clause immediately follows, and augments the Appointments Clause by
conferring on the President the "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." Art. II, § 2, cl. 3.
The Recess Appointments Clause was designed to enable the President tO fill
vacancies. Although there was little discussion of the Clause at the Constitutional
Convention, Alexander Hamilton addressed it in The Federalist Papers. Hamilton
described the Clause as a "supplement" to the President's appointment power,
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establishing an "auxiliary method of appointment, in cases to which the general method
was inadequate." The Federalist No. 67, at 409 (C. Rossiter ed., 1961). He further
explained that the Clause was needed because "it would have been improper to oblige
[the Senate] to be continually in session for the appointment of officers," and the filling
of vacancies during a Senate recess "might be necessary for the public service to fill
without delay." Id. at 410. One generation later, Justice Story confirmed that the
Clause was intended to achieve "convenience, promptitude of action, and general
security," and to avoid the need "that the senate should be perpetually in session?' J.
Story., 3 Commentaries on the Constitution § 804, at 574 (reprinted 1987).
In permitting the President to "fill up all Vacancies" during a "Recess" of the
Senate, the Recess Appointments Clause by its terms encompasses all recesses and
all vacancies. Senator Kennedy nonetheless proposes to restrict the Clause only to
some recesses (inter-session as opposed to intra-session recesses) and only to some
vacancies (for executive as opposed to judicial offices). As explained below, these
putative restrictions find no support in the text, history, or purpose of the Recess
Appointments Clause, or in the judicial and executive precedents construing that
provision.
In previous cases, litigants have argued that a vacancy does not "happen
during the Recess," and the Recess Appointments Clause is thus inapplicable, if the
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lo THE RECESS APPOINTMENTS CLAUSE IS NOT LIMITED
TO INTER-SESSION RECESSES OF THE SENATE
AB The Recess Appointments Clause By Its Terms Permits
Appointments During Intra-Session Senate Recesses
The recess appointment power, by terms of the Clause, may be exercised
"during the Recess of the Senate." That phrase should bear its ordinary meaning.
See, e.g., United States v. Sprague, 282 U.S. 716, 731, 51 S. Ct. 220, 222 (1931)
("The Constitution was written to be understood by the voters; its words and phrases
were used in their normal and ordinary as distinguished from technical meaning; where
the intention is clear there is no room for construction and no excuse for interpolation
or addition."); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1,188 (1824) (Framers "must
be understood to have employed words in their natural sense, and to have intended
what they said").
When the Constitution was ratified, the term "recess" encompassed both inter-
session and intra-session legislative breaks. Parliament had long applied the word
"recess" to both kinds of breaks. Compare Journal of the House of Lords, vol. 12
(Feb. 24, 1674) ("His Majesty therefore sees fit to make a Recess at this time * * *
vacancy already existed at the beginning of the recess at issue. Courts unanimously
have rejected that contention, see Woodley, 751 F.2d at 1012-1013; Allocco, 305 F.2d
at 709-714, and Senator Kennedy does not assert it here.
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He hath given order to the Lord Keeper to prorogue the Parliament * * *.") with id.
vol. 14 (Dec. 19, 1689) (referring to "Christmas recess") and id. vol. 17 (Dec. 22,
1704) (adjournment for a "recess" until January 4, 1705). Dictionary definitions were
consistent with this usage. In 1755, Samuel Johnson defined a "recess" as, among
other things, "remission and suspension of any procedure" or "departure into
privacy." 4 A Dictionary of the English Language (1755) (reprinted 1968). In 1828,
Noah Webster similarly defined a"recess" as a "Remission or suspension of business
or procedure." II N. Webster, An American Dictionary of the English Language 51
(1828).
At various times, the Senate has endorsed similar definitions. A 1905 Report
of the Senate Judiciary Committee, in addressing the Recess Appointments Clause,
stated that the word "recess" is "one of ordinary, not technical signification" and is
"used in the constitutional provision in its common and popular sense." S. Pep. No.
4389, 58th Cong., 3d Sess. (1905) (reprinted in 39 Cong. Rec. 3823 (1905)). The
Committee concluded that the word "recess" refers to "the period of time when the
Senate is not sitting in regular or extraordinary session as a branch of the Congress,
or in extraordinary session for the discharge of executive functions." 1-bid. The
Senate continues to view this 1905 Report as authoritative. See Riddick's Senate
Procedure 947 (1992) (available at http://www, gpoaccess, gov).
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To this day, moreover, official congressional records similarly define a "recess"
as "any period of three or more complete days - excluding Sundays - when either the
House of Representatives or the Senate is not in session." Government Printing
Office, 2003-2004 Official Congressional Directory, .108th Cong. 526 n.2
(emphasis added) (hereafter"CongressionalDirectory") (attached to this brief at Tab
A); see id. at 512-525 (listing such intra-session breaks as congressional "recesses").
Consistent with that understanding, the Concurrent Resolution authorizing the break
during which Judge Pryor was appointed expressly described it as a "reces[s]." H.R.
Con. Res. 36 l, 108th Cong. (2004). And before that break began, the Senate Majority
Leader wished his colleagues "a safe President's Day recess." 150 Cong. Rec. S 1414
(daily ed. Feb. 12, 2004) (emphasis added).
Because the Senate was plainly in recess on February 20, 2004, the President
could then permissibly make recess appointments.
B. Longstanding Practice And Precedent Confirm The
Permissibility Of Intra-Session Recess Appointments
The applicability of the Recess Appointments Clause to intra-session Senate
recesses is reinforced by longstanding historical practice, by opinions of various
Attorneys General and senior Executive Branch officials, by the few judicial decisions
to have addressed this question, and by congressional acquiescence.
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1. a. As the Supreme Court repeatedly has explained, "'traditional ways of
conducting government * * * give meaning' to the Constitution." Mistretta v. United
States, 488 U.S. 361,401,109 S. Ct. 647, 670 (1989) (citation omitted); see, e.g.,
American lns. Ass'n v. Garamendi, 123 S. Ct. 2374, 2386 (2003) (invoking "the
historical gloss on the 'executive Power' vested in Article II of the Constitution");
The Pocket Veto Case, 279 U.S. 655, 689, 49 S. Ct. 463, 469-470 (1929) ("Long
settled and established practice is a consideration of great weight in a proper
interpretation of constitutional provisions * * *."); United States v. Midwest Oil Co.,
236 U.S. 459,473, 35 S. Ct. 309,313 (1915) ("in determining the meaning of a statute
or the existence of a power, weight shall be given to the usage itself- even when the
validity of the practice is the subject of the investigation"). In applying that principle,
the Court has stated that "apractice of at least twenty years duration 'on the part of
the executive department, acquiesced in by the legislative department, while not
absolutely binding on the judicial department, is entitled to great regardin determining
the true construction of a constitutional provision.'" Pocket Veto Case, 279 U.S. at
690, 49 S. Ct. at 470 (emphases added and citations omitted). Here, the relevant
executive practice and legislative acquiescence are measured not in decades, but
centuries.
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For as long as Congress has scheduled frequent intra-session recesses,
Presidents have made intra-session recess appointments. Before 1857, Presidents had
virtually no occasion or need to make such appointments: during that period,
Congress scheduled only three briefintra-session recesses, for periods of seven, five,
and five days, over the Christmas holidays of 1800, 1817, and 1828 respectively. See
Congressional Directory, supra, at 512-514. Between 1857 and 1867, Congress
scheduled seven intra-session recesses, but none exceeded two weeks. See id. at 514-
515. Then, in 1867, Congress scheduled an intra-session recess extending from
March 30 to July 3, see id. at 515, and President Johnson made at least fourteen
known recess appointments during that time. See Congressional Research Service,
hztrasession Recess Appointments 5 (April 23, 2004) (attached to this brief at Tab B).
During the last several decades, Congress has made increasingly frequent use
of intra-session recesses, see Congressional Directory, supra, at 519-525, and
Presidents have made correspondingly frequent use of intra-session recess
appointments. President Truman alone made 104 known intra-session recess
appointments, President Clinton made 39, President Eisenhower made 38, and
President Reagan made 36. See lntrasession Recess Appointments, supra, at 3-4.
Although historical records on this point are incomplete, it is known that, between
1867 and the present, at least 12 different Presidents have made a total of at least 285
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intra-session recess appointments. See id. Those appointments have included at least
14 Article III judges, ranging from Samuel Blatchford (appointed to the Southern
District of New York by President Johnson in 1867) to William Pryor Jr. (appointed
to this Court by President Bush in 2004). See id. at 5-32.
b. In support of this longstanding practice, Attorneys General and other senior
Executive Branch officials repeatedly have concluded that the Recess Appointments
Clause applies to intra-session Senate recesses. Although such formal Executive
Branch opinions do not bind the courts, they are nonetheless "entitled to some
deference." Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 780 n.6 (D.C. Cir.
1984) (Edwards, J., concurring), cert. denied, 470 U.S. 1003, 105 S. Ct. 1354 (1985).
In 1921, Attorney General Daugherty concluded that the President could make
appointments during an intra-session recess of less than one month. 33 Op. Att'y
Gen. 20 (1921). The Attorney General reasoned that the Constitution does not
distinguish between inter-session and intra-session recesses, but instead permits recess
appointments unless "in a practical sense the Senate is in session so that its advice and
consent can be obtained." ld. at 21-22. The Attorney General noted that the purpose
of the Recess Appointments Clause was to enable the President to "'keep * * *
offices filled,'" and thereby prevent any "'interval of time when there may be an
incapacity of action'" by the government, and he stressed that this purpose would be
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frustrated were intra-session appointments deemed categorically impermissible. Id.
at 22-23 (citations omitted) ("I can not bring myself to believe that the framers of the
Constitution ever intended such a catastrophe to happen."). The Attorney General
further relied on congressional understandings (as reflected in the 1905 Judiciary
Committee report) and judicial precedent (discussed below). See id. at 23-24.
Attorney General Daugherty considered at length the contrary views previously
expressed by Attorney General Knox, who had opined that the President could not
make intra-session recess appointments. 23 Op. Att'y Gen. 599 (1901). Attorney
General Knox opined that only inter-session breaks were recesses for purposes of the
Recess Appointments Clause, despite recognizing that an intra-session break "may be
a recess in the general and ordinary use of that term." Id. at 601. He acknowledged
that, under his view, the President would be powerless to make any appointments
during an intra-session recess of"several months," but he dismissed that concern as
a mere "argument from inconvenience." Id. at 603. He also acknowledged that his
opinion was contrary to judicial precedent, which he brushed aside as not "binding
authority." See id. Attorney General Daugherty, however, expressly repudiated these
conclusions as inconsistent with the text and purpose of the Recess Appointments
Clause. See 33 Op. Att'y Gen at 21-24.
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Subsequent executive precedent uniformly follows the Daugherty opinion on
this point. In 1960, Acting Attorney General (formerly Judge) Walsh reaffirmed at
length that the President may permissibly make intra-session recess appointments. See
41 Op. Att'y Gen. 463,466-469 (1960). More recent opinions by the Office of Legal
Counsel of the Justice Department ("OLC"), which is authorized to render "formal
opinions of the Attorney General" in his capacity as the chief "legal adviser to the
President" (28 C.F.R. § 0.25), unanimously have reached the same conclusion. See
20 Op. Off. Legal Counsel 124, 161 (1996); 16 Op. Off. Legal Counsel 15, 15-16
(1992); 13 Op. Off. Legal Counsel 271,272-273 (1989); 6 Op. Off. Legal Counsel
585, 588 (1982); 30p. Off. Legal Counsel 314, 316 (1979).
2. The Senate has long acquiesced in the practice of intra-session recess
appointments. Faced with some 285 intra-session recess appointments over the last
140 years, the Senate has never, to our knowledge, raised significant constitutional
concerns about the practice. To the contrary, as explained above, the Senate Judiciary
Committee recognized in 1905 that the Recess Appointments Clause is operative
during any "period of time when the Senate is not sitting," see 39 Cong. Rec. at 3823,
and Congress to this day continues to describe all of its intra-session breaks of three
or more days, excluding Sundays, as "recesses," see CongressionalDirectory, supra,
at 512-525, including the one directly at issue here. See H.R. Con. Res. 361, supra.
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The Comptroller General, who is an "officer of the Legislative Branch" and
therefore "subservient to Congress" (Bowsher v. Synar, 478 U.S. 714, 727, 731, 106
S. Ct. 3181, 3188, 3190 (1986)), has endorsed the practice of intra-session recess
appointments even more directly. In 1948, the Administrative Office of the United
States Courts asked the Comptroller General whether four Article IIIjudges appointed
during an intra-session recess by President Truman could receive compensation from
the government. Endorsing Attorney General Daugherty's 1921 opinion, the
Comptroller General concluded that the judges had been constitutionally appointed.
See 28 Comp. Gen. 30, 34-36 (1948). Moreover, applying the reasoning of that
opinion, the Comptroller General further concluded that the term "recess," as used in
a 1940 statute addressing compensation for recess appointees, encompassed intra-
session as well as inter-session recess appointees. See id. at 37.
Congress has never disapproved the Comptroller General's 1948 opinion. To
the contrary, in 1966, it re-codified the 1940 statute with only insubstantial changes.
Compare 5 U.S.C. § 5503(a) with 54 Stat. 751. 2 Like its predecessor, section 5503(a)
2 Section 5503(a) provides:
Payment for services may not be made from the Treasury of the United
States to an individual appointed during a recess of the Senate to fill a vacancy
in an existing office, if the vacancy existed while the Senate was in session and
was by law required to be filled by and with the advice and consent of the
14
makes no distinction between intra-session and inter-session recess appointees (and
no distinction between judicial and other recess appointees). Under the reasoning of
the Comptroller General, section 5503(a)makes intra-session recessappointees eligible
for compensation, consistent with his conclusion that intra-session recess
appointments are constitutional.
3. Given the extent of agreement on this point, few cases address the
constitutionality of intra-session recess appointments. To our knowledge, only two
judicial decisions do so, and both held such appointments to be constitutional.
In Gould v. United States, 19 Ct. Ch 593 (Ct. Ch 1884), the Court of Claims
upheld the constitutionality of President Johnson's intra-session recess appointment
of William Gould as a paymaster of the Army in 1867. The court found "no doubt
Senate, until the appointee has been confirmed by the Senate. This subsection
does not apply -
(1) if the vacancy arose within 30 days before the end of the session ofthe Senate;
(2) if, at the end of the session, a nomination for the office, other than the
nomination of an individual appointed during the preceding recess of the Senate,
was pending before the Senate for its advice and consent; or
(3) ifa nomination for the office was rejected by the Senate within 30
days before the end of the session and an individual other than the one whose
nomination was rejected thereafter receives a recess appointment.
15
that a vacancy occurring while the Senate was thus temporarily adjourned, from July
20 to November 21, 1867, could be and was legally filled by appointment of the
President acting alone." Id. at 595. Accordingly, the court concluded, Gould was
entitled to payment for service under his intra-session recess appointment. See id.
Similarly, in Nippon Steel Corp. v. United States International Trade
Commission, 239 F. Supp. 2d 1367 (C.I.T. 2002), the Court of International Trade
upheld the constitutionality of President Bush's 2001 intra-session recess appointment
of Dennis Devaney as a Commissioner on the ITC. The court explained: "The court
is aware that the making of appointments during an intrasession recess is not without
controversy. The long history of the practice (since at least 1867) without serious
objection by the Senate, however, demonstrates the legitimacy of these appointments."
ld. at 1374 n.13.
In sum, intra-session recess appointments are an integral part of the
constitutional framework by virtue of the text of the Constitution and their frequent use
by Presidents from 1867 to the present. The Senate has acquiesced in such
appointments, and the courts have held them to be constitutional. The President had
ample authority to give Judge Pryor an intra-session recess appointment.
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C. No Constitutional Provision Restricts The Plain Meaning Of The
Word "Recess" To Inter-Session Recesses
Senator Kennedy offers three textual arguments for restricting the Recess
Appointments Clause to inter-session recesses. None of them has merit.
1. Senator Kennedy first invokes (Br. 7) the Framers' use of the word "the."
Specifically, he contends that the phrase "during the Recess" (as opposed to
something like "during a Recess" or "during Recesses") must refer to some single
recess, presumably between the two sessions making up a particular term of Congress.
At the outset, we note the extreme implausibility of Senator Kennedy's contention that
any possible implications of an indefinite article could overcome a practice accepted
for almost 140 years. Cf. Jaclvnan v. Rosenbaum Co., 260 U.S. 22, 31, 43 S. Ct. 9,
9-10 (1922) (Holmes, J.) ("If a thing has been practiced for two hundred years by
conmaon consent, it will need a strong case for the Fourteenth Amendment to affect
it * * *. "). In any event, as used in the Recess Appointments Clause, the word "the"
plainly does not suggest an implied reference to inter-session recesses.
To begin with, there is no single recess (inter-session or otherwise) to which the
word "the" could plausibly refer to exclusively. The Constitution itself does not
restrict a term of Congress to two sessions, much less afford special status to an inter-
session recess during a two-session Congress. Moreover, the Framers had no
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background understanding that each Congress would sit for only two sessions. To
the contrary, the first, fifth, and eleventh Congresses each held three sessions, as did
25 of the first 76 Congresses, and the 67th Congress held four sessions. See
Congressional Directory, supra, at 512-518. Furthermore, even in a two-session
Congress, the Recess Appointments Clause unquestionably permits appointments
both between sessions of the same Congress and, as Senator Kennedy recognizes
(Br. 7), "between the Second Session of one Congress and the First Session of the
next." Because the Clause plainly permits appointments at least twice per Congress,
the word "the" cannot bear the singular connotation that the Senator would impose on
it.
Senator Kennedy's proposed usage is also inconsistent with Art. I, § 5, cl. 4,
which provides that "In]either House, during the Session of Congress, shall, without
the Consent of the other, adjourn for more than three days" (emphasis added).
Because the Constitution provides that Congress "shall assemble at least once in every
Year" (Art. I, § 4, cl. 2), and thus requires at least two sessions per Congress, the
phrase "during the Session" obviously does not have any connotation of singular
rather than plural. Similarly, the phrase "during the Recess" does not Suggest that
recess appointments are permissible only during a single unspecified inter-session
recess per Congress. Instead, the phrase "during the Recess" simply refers to any
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period in which Congress is in "Recess," just as the phrase "during the Session"
simply refers to any period in which Congress is in "Session."
Moreover, at the time of the Framing, phrases such as "during the recess" and
"in the recess" were widely used to refer to multiple or intra-session recesses. In
1775, for example, the Continental Congress recommended that the colonies create
committees of safety to address matters "for the security and defense of their
respective colonies, in the recess of their Assemblies." I 1 Journals of the Continental
Congress 1774-1789, at 189 (July 18, 1775) (emphasis added). Acting on that
recommendation, New York's First Provincial Congress appointed Committees of
Safety to act during two intra-session recesses in 1775. Before beginning a two-week
July recess, it adopted a resolution providing that "a Committee of Safety be
appointed during the recess of this Congress." Records of the New York Provincial
Congress, July 8, 1775, in Peter Force, II A Documentary History of the English
Colonies in North America 1347 (I 839) (emphasis added). Before beginning another
recess in September, the same Congress appointed another such Committee. Agnes
Hunt, The Provincial Committees of Safety of the American Revolution 64 (1904).
Both recesses were intra-sessional. See Charles Z. Lincoln, 1 The Constitutional
History of New York 52 (First Provincial Congress began on May 22, 1775 and
"continued in session until November 4, 1775, with some intermediate adjournments,
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during which a committee of safety, created by the congress, acted in its place and
performed certain specified functions").
Construed in its textual and historical context, the phrase "during the Recess"
simply refers to any period during which Congress is in "Recess." Because recesses
were widely understood to include intra-session recesses, "during the Recess" cannot
plausibly be construed to mean "during any inter-session Recess."
2. Senator Kennedy next claims support (Br. 8) from Art. I, § 5, cl. 4, which
provides that "[n]either House, during the Session of Congress, shall, without the
Consent of the other, adjourn for more than three days." Senator Kennedy reasons
that the terms "Recess" and "adjourn" must mean something different, that "adjourn"
must refer to intra-session breaks, and that "Recess" must therefore refer to inter-
session breaks. This analysis is also flawed.
To begin with, the word "adjourn" (like the word "Recess") plainly
encompasses both inter-session and intra-session legislative breaks. In construing the _
Pocket Veto Clause of the Constitution, which applies when "Congress by their
Adjournment prevent" the President from returning a bill (Art. I, § 7, el. 2), the
Supreme Court has made clear that an "Adjournment" includes both ?the final
adjournment of the Congress" at the end of a session and other "interim
adjournment[s]" during the middle. Pocket Veto Case, 279 U.S. at 680, 49 S. Ct. at
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467 (1929). Indeed, "Adjournment" must include inter-session breaks, because it is
undisputed that the Pocket Veto Clause applies at least to such breaks, and Senator
Kennedy himself has urged that it applies only to such breaks. See Kennedy v.
Sampson, 511 F.2d 430 (D.C. Cir. 1974). Congress itself routinely begins inter-
session breaks by adjourning. See, e.g., 136 Cong. Rec. S 11,934, S 11,956 (daily ed.
Aug. 2, 1990) (statement of Sen. Kohl) (referring to "intersession adjournment[s]");
136 Cong. Rec. $589, $589 (daily ed. Jan. 31, 1990) (statement of Sen. Mitchell)
(same).
In any event, it is beyond serious dispute that adjournment includes at least
intra-session recesses (as Senator Kennedy now concedes), and "adjourn" has
repeatedly been linked to "Recess" in precisely that context. For example, in Wright
v. United States, 302 U.S. 583,589, 58 S. Ct. 395, 398 (1938), the Supreme Court
described the one-House, three-day, intra-session adjournment permitted by Art. I, §
5, cl. 4 as "a short recess by one House without the consent of the other" (emphasis
added); see also Harris v. Board of Governors of the Fed. Reserve Sys., 938 F.2d
720, 723 (7th Cir. 1991) (Posner, J.) ("all that 'adjournment' means is that the
Congress is in recess"). The same understanding is reflected in Thomas Jefferson's
1801 Manual of Parliamentary Procedure, which the Senate uses to this day. In his
Manual, Jefferson explained that Congress may separate in "two ways only": either
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through "dissolution by the efflux of their time" (at the end of each Congress every
two years) or through "adjournment" (which would include, under this classification
scheme, all intra-session breaks and all inter-session breaks before the end of a
congressional term). See id. § LI, at 419 (2d ed. 1812). Moreover, Jefferson
expressly described the latter breaks as constituting a "recess by adjournment." Ibid.
And the Congress, in authorizing the break during which Judge Pryor was appointed,
described itself as "recessed or adjourned." See H.R. Con. Res. 361,108th Cong.
(2004). These descriptions of intra-session adjourmnents as recesses undermine
Senator Kennedy's case even further_
3. As a final assertedly textual argument (Br. 8-9)i Senator Kennedy asserts that
a recess appointment of almost two years, from near the beginning of one session until
"the End ofth[e] next Session" (Art. II, § 2, cl. 3), would be "absurd." However, the
one- to two-year duration of current intra-session recess appointments flows from
Congress's own independent decision to schedule only the constitutional minimum of
one session per year (see Art. I, § 4, cl. 2). In any event, there is nothing anomalous
about giving the Senate between one and two sessions to consider recess appointees
for possible confirmation, as the Recess Appointments Clause does by its terms,
particularly given the possibility ofintra-session recess appointments relatively late
during a particular session of Congress. There is also nothing anomalous about recess
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appointments of between one and two years - a duration relatively modest compared
to the term of office that most Executive Branch or Judicial Branch appointees could
expect to serve upon Senate confirmation.
For these reasons, the Framers' decision to extend recess appointments to the
"end ofth[e] next session" of the Senate cannot be read to implicitly foreclose intra-
session recess appointments. Instead, it merely ensures that a recess appointee may
hold office for at least one, but less than two, full sessions of the Senate.
D. Intra-Session Recess Appointments Are Also Consistent
With The Purpose Of The Recess Appointments Clause
1. Senator Kennedy errs further in suggesting (Br. 9-13) that intra-session
recess appointments are unnecessary to advance, or inconsistent with the purposes of,
the Recess Appointments Clause. The "'substantial purpose'" of that Clause is to
"'keep * * * offices filled'" when the Senate cannot provide advice and consent, see
33 Op. Att'y Gen. at 22-23 (quoting 10p. Att'y Gen. 632, 633 (1823)), and thereby
to facilitate continuous and effective government. Both inter-session and intra-session
recesses implicate that core purpose of the Clause, for the Senate cannot provide
advice and consent during either kind of recess. Indeed, the asserted distinction
between inter-session and intra-session recesses is entirely irrelevant to those
purposes. Nothing in the Constitution suggests that intra-session recesses are
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necessarily short. Moreover, the Framers would have been familiar with long intra-
session recesses. See, e.g., Maryland State Archives, General Session Lists, available
at http://www.mdarchives.state.md.us/msa/speccol/sc2600/sc2685datml/sesslist.html
(citing 44-day recess in 1681, and 146-day recess in 1683). And Jefferson himself
explained that an intra-session adjournment or recess "is no more than a continuance
of the session from one day to another, or for a fortnight, a month &c ad libitum,"
Manual of Parliamentary Procedure, § L1, at 419. It would be quite surprising if the
recess appointment power applied when the Senate adjourned sine die and then
returned one month later, which would constitute an inter-session recess (see 41 Op.
Att'y Gen. at 470), but did not apply when the Senate simply adjourned for one
month, which would constitute an intra-session recess (see ibid.). There is no
apparent reason why the Framers might wish to permit recess appointments in the one
case but not in the other.
Scheduling decisions by Congress underscore this point. On occasion,
Congress has eliminated inter-session recesses entirely, as it did in 1867, 1903, and
1941. See Congressional Directory, supra, at 515, 517-518. And Congress now
routinely schedules intra-session recesses of one month or more, as it has done at least
eight times during the Administrations of Presidents Clinton and George W. Bush.
See Intrasession Recess Appointments, supra, at 3-4. Moreover, Congress has
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scheduled a nearly-two-month intra-session recess as recently as the Reagan
Administration, and it has scheduled two intra-session recesses of more than 100 days
as recently as the Truman Administration. See/d. at 3. A recess appointment power
that applied during a 0ne-day inter-session recess, but did not apply during a three-
month intra-session recess, wouldbe capricious. Moreover, as the Attorney General
explained long ago (33 Op. Att'y Gen. at 23), such a recess appointment power would
be entirely inadequate to accomplish its underlying purposes. Senator Kennedy's
proposed construction of the Recess Appointments Clause is thus not only
inconsistent with constitutional text and tradition, but also implausible even as a policy
matter.
2. Senator Kennedy suggests (Br. 10) that the purpose of the Recess
Appointments Clause was to permit only those appointments necessary to avoid a
governmental "crisis." The Framers did not share that view. To the contrary,
Alexander Hamilton described the Clause as designed to facilitate appointments
"necessary for the public service to fill without delay," The Federalist No. 67, at 410
(C. Rossiter ed., 1961) (emphasis added), and Justice Story described the Clause as
intended to achieve "convenience, promptitude of action, and general Security," J.
Story, 3 Commentaries on the Constitution, § 804, at 574 (reprinted 1987) (emphasis
added). Those formulations in no way suggest the kind of emergency standard
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posited by Senator Kennedy. As one court has explained, "there is nothing to suggest
that the Recess Appointment Clause was designed as some sort of extraordinary and
lesser method of appointment, to be used only in cases of extreme necessity"; instead,
"[r]ecess appointments have traditionally not been made only in extraordinary
circumstances, but whenever Congress was not in session." Staebler v. Carter, 464
F. Supp. 585,597 (D.D.C. 1979).
Furthermore, Senator Kennedy's contention that intra-session recess
appointments are categorically unconstitutional would preclude even those intra-
session recess appointments that do meet some putative heightened standard of
necessity. Such appointments could be important because of the length of the intra-
session recess at issue, because of the importance of the particular office at issue, or
because of any number of exigent circumstances ranging from a foreign policy crisis
to a terrorist attack. For example, President Truman made intra-session recess
appointments during two recesses of several months each, see Intrasession Recess
Appointments, supra, at 3; during the 1991 economic recession, President George
H.W. Bush made an intra-session recess appointment to immediately re-appoint Alan
Greenspan as Chairman of the Federal Reserve System, see id. at 26; and in this very
case, President George W. Bush made an intra-session recess appointment to fill a
vacancy designated as aj udicial emergency by the Administrative Office of the United
26
States Courts, after the Senate declined for some ten months to act upon a still-
pending nomination? In restricting the Recess Appointments Clause to inter-session
recesses, Senator Kennedy would make the Clause inadequate to accomplish even the
modest objective of facilitating urgent appointments when the Senate cannot provide
advice and consent.
Moreover, and perhaps most fundamentally, even if the Framers were concerned
primarily with avoiding governmental crisis, they did not restrict the Clause to those
situations. As the Supreme Court repeatedly has explained (in construing federal
statutes), "the fact that a statute can be applied in situations not expressly anticipated
by Congress does not demonstrate ambiguity. It demonstrates breadth." PGA Tour,
Inc. v. Martin, 532 U.S. 661, 689 121 S. Ct. 1879, 1897 (2001) (quoting
Pennsylvania Dep 't of Corrections v. Yeskey, 524 U.S. 206, 212, 118 S. Ct. 1952,
1956 (1998)). The same principle should apply here. Indeed, the Framers acted quite
sensibly in crafting a constitutional provision broad enough both to permit potentially
3 See Administrative Office of the United States Courts, JudicialEmergencies,
available at http://www.uscourts.gov/vacancies/01042001/emergencies2.htm (listing
vacancy created when Judge Emmett Ripley Cox took senior status as a judicial
emergency). See also 149 Cong. Rec. S14,547, 14,561 (daily ed. Nov. 12, 2003)
(statement of Sen. Kyl) ("Bill Pryor was nominated to fill an Eleventh Circuit judicial
emergency.").
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critical recess appointments and to avoid the crippling uncertainty that would result
if the constitutionality of individual appointments depended on a case-by-case
assessment ofthe particular circumstances surrounding individual appointments. The
Supreme Court has observed that separation of powers in general "is a prophylactic
device, establishing high walls and clear distinctions because low walls and vague
distinctions will not be judicially defensible in the heat ofinterbranch conflict." Plaut
v. Spendthrift Farms, Inc., 514 U.S. 211,239, 115 S. Ct. 1447, 1463 (1995). That
observation fully applies to the appointments provisions of Article II, which comprise
a significant element of the separation of powers between the President and Congress.
3. For similar reasons, Senator Kennedy errs in contending (Br. 12-.13) that
intra-session recesses are too short to implicate the purposes of the Recess
Appointments Clause. As explained above, there is no constitutional connection
between the t3;oe of recess (inter-session or intra-session) and its duration; intra-
session recesses can and have run for up to several months; and it is undisputed that
the Recess Appointments Clause would permit appointments during even an extremely
short inter-session recess. Accordingly, there is no functional reason to correlate the
type of recess at issue with concerns about inappropriate appointments during short
recesses.
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More fundamentally, with one exception, the Constitution nowhere distinguishes
among recesses (inter-session or intra-session) based on their length. The one
exception is Art. I, § 5, cl. 4, which provides that "In]either House, during the Session
of Congress, shall, without the Consent of the other, adjourn for more than three
days." That Clause arguably suggests that a legislative break of three days-or less is
not an adjournment or recess of constitutional significance, consistent with
background understandings that overnight, weekend, or perhaps even long-weekend
breaks constitute de minimis and insignificant exceptions to rules otherwise governing
the continuity of government or other operations. However, the eleven-day recess at
issue here was not such a de minimis break, and Senator Kennedy does not explain
how courts might, or why courts should, extend a three-day exception into an eleven-
day exception, or even something more. 4
4 Senator Kennedy errs in suggesting (Br. 4) that the recess at issue here was
"for ten days." The length of a recess is calculated by counting the calendar days
running from the day after the recess begins and including the day the recess ends.
See, e.g., 16 Op. Off. Legal Counsel 15, 16 (1992) (treating recess from Jan. 3, 1992
to Jan. 21, 1992 as 18 days); 13 Op. Off. Legal Counsel 271 (1989) (treating recess
from Aug. 4, 1989 to Sept. 6, 1989 as 33 days); 33 Op. Att'y Gen. 20, 21, 24 (1921)
(treating recess from Aug. 24, 1921, to Sept. 21, 1921 as 28 days). Under that settled
formula, a break from February 12, 2004 until February 23, 2004 constitutes an eleven-day recess.
29
Senator Kennedy errs further in claiming support (Br. 16-17) from Attorney
General Daugherty's analysis of the minimum break that could constitute a recess for
constitutional purposes. As explained above, the Attorney General first concluded
that a 28-day intra-session break clearly did constitute a recess for purposes of the
Recess Appointments Clause. See 33 Op. Att'y Gen. at 20-24. Then, citing Art. I,
§ 5, cl. 4, he stated "unhesitatingly" that a break "for only 2 instead of 28 days" did
not constitute such a recess. See 33 Op. Att'y Gen at 24-25. Finally, in a one-
sentence dictum seized upon by Senator Kennedy, he stated more equivocally: "Nor
do I think an adjournment for 5 or even 10 days can be said to constitute the recess
intended by the Constitution." ld. at 25. However, the Attorney General went on to
suggest that courts cannot enforce any minimum duration requirement other than the
one specifically set forth in Art. I, § 5, cl. 4. Thus, he stressed that "the line of
demarcation can not be accurately drawn," that the President must have "large,
although not unlimited" discretion in making appointments, and that "[e]very
presumption is to be indulged in favor of the validity of whatever action he may take."
Ibid.
Finally, we note that Senator Kennedy's proposal to extend the three-day de
minimis exception of Art. I, § 5, cl. 4 into an eleven-or-more-day de minimis
exception is equally inconsistent with historical practice as it is with constitutional text.
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Many Presidents have made intra-session recess appointments during recesses of
comparable duration to the one at issue here. For example, President Coolidge made
such an appointment during a 13-day recess, President Reagan made such
appointments during recesses of 18 and 13 days, President George H.W. Bush made
such an appointment during a 17-day recess, and President Clinton made a total of
14 such appointments during recesses of 11, 16, 9, 16, 10, and l l days. See
Intrasession Recess Appointments, supra, at 3-4. Despite Senator Kennedy's
erroneous contention to the contrary, Judge Pryor's appointment fits comfortably
within this settled constitutional tradition.
I1. THE RECESS APPOINTMENTS CLAUSE PERMITS
THE APPOINTMENT OF ARTICLE llI JUDGES
Senator Kennedy alternatively contends that the Recess Appointments Clause
does not permit the appointment of Article III judges. In his argument heading (Br.
21), Senator Kennedy purports to focus on the particular circumstances of Judge
Pryor's individual appointment. However, what follows is an extended argument that
judicial recess appointments are neverpermissible (Br. 21-28), supplemented by 0nly
a cursory suggestion that this judicial recess appointment is impermissible , either
because it occurred during an intra-session recess (Br. 28) or because it unduly
circumvents Senate prerogatives (Br. 29-30).
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As explained below, none of these contentions has merit. The text of the
Recess Appointments Clause plainly authorizes the appointment of Article IIIjudges;
37 different Presidents, from George Washington to the present, have made a total of
over 300 judicial recess appointments, including 15 recess appointments of Supreme
Court Justices; the Senate has affirmatively acquiesced in this longstanding practice;
and the only courts to consider the issue have upheld judicial recess appointments.
Moreover, because the Recess Appointments Clause permits both intra-session recess
appointments and judicial recess appointments, there is no basis for holding that it
does not permit intra-sessionjudicial recess appointments, or that it requires a case-by-
into the particular circumstances surrounding individualcase assessment
appointments.
A. The Recess Appointments Clause Clearly Permits
The President To Appoint Article III Judges
Construed with the Appointments Clause, the Recess Appointments Clause
plainly permits the appointment of Article III judges. In pertinent part, the
Appointments Clause permits the President to appoir_t, with the advice and consent
of the Senate, "Ambassadors, other public Ministers and Consuls, Judges of the
supreme Court, and all other Officers of the United States." Art. II, § 2, el. 2. The
Recess Appointments Clause immediately follows and permits the President, when the
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Senate is in recess, to "fill up all Vacancies" by granting "Commissions which shall
expire at the End of their next Session." Art. II, § 2, cl. 3. Construing these
appointments provisions in pari materia, the "Vacancies" referred to by the Recess
Appointments Clause obviously are vacancies in offices held by "Officers of the
United States" subject to the Appointments Clause, and those "Officers of the United
States" expressly include "Judges."
The Framers confirmed this understanding. In the Federalist Papers, Hamilton
explained that the Recess Appointments Clause is "supplementary to" the preceding
Appointments Clause, and that the "Vacancies" referred to in the latter clause therefore
a
"must be construed to relate to the 'officers' described in the preceding [clause]."
The Federalist No. 67, at 410 (C. Rossiter ed., 1961). Hamilton also confirmed that
the Constitution specifies the same procedures for the appointment of judicial and
executive officers: "As to the mode of appointing the judges: this is the same with that
of appointing the officers of the Union in general * * * " The Federalist No. 78, at
464 (C. Rossiter ed., 1961). Moreover, although the Recess Appointments Clause
was added to the Constitution without direct debate (see 2 Farrand, Records of the
Constitutional Convention 533, 540, 574-576, 600 (1937)), Edmund Randolph, a
member of the Constitutional Convention, initially opposed ratification in part because
that Clause gave the President the power to make judicial recess appointments. See
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3 Farrand, supra, at 123, 127; Woodley, 751 F.2d at 1010; cf. Martin v. Hunter's
Lessee, 14 U.S. (1 Wheat.) 304, 351 (1816) (adopting construction of Constitution
"publicly avowed by its friends, and admitted by its enemies," during ratification
debates).
B. Longstanding Practice And Precedent Confirm The
Permissibility Of Judicial Recess Appointments
As explained above, the Supreme Court has made clear that "'traditional ways
of conducting government * * * give meaning' to the Constitution," Mistretta, 488
U.S. at 401, 109 S. Ct. at 670 (citation omitted). That principle applies with particular
force to traditions beginning "when the founders of our government and framers of
our Constitution were actively participating in public affairs." Hampton & Co. v.
United States, 276 U.S. 394, 412, 48 S. Ct. 348, 353 (1928); see, e.g., Marsh v.
Chambers, 463 U.S. 783, 790, 103 S. Ct. 3330, 3335 (1983) (actions of First
Congress are "'contemporaneous and weighty evidence'" of Constitution's "'true
meaning'" (quoting Wisconsin v. Pelican lns. Co., 127 U.S. 265,297, 8 S. Ct. 1370,
1378 (1888))); United States v. Curtis-Wright Export Corp., 299 U.S. 304, 328, 57
S. Ct. 216, 225 (1936) (construction "'placed upon the Constitution * * * by the men
who were contemporary with its formation'" is "'almost conclusive'" (quoting
Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 57, 4 S. Ct. 279, 281
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(1884))). And it applies with greatest force to traditions beginning at the Framing and
continuing to the present. See, e.g., Mistretta, 488 U.S. at 401, 109 S. Ct. at 670
("Our 200-year tradition ofextmjudicial service is additional evidence that the doctrine
of separated powers does not prohibit judicial participation in certain extrajudicial
activity."); Marsh, 463 U.S. at 792, 103 S. Ct. at 3336 ("In light of the unambiguous
and unbroken history of more than 200 years, there can be no doubt that the practice
of opening legislative sessions with prayer has become part of the fabric of society.");
Walz v. Tax Comm 'n, 397 U.S. 664, 678, 90 S. Ct. 1409, 1416 (1970) ("an unbroken
practice * * * is not something to be lightly cast aside"). The Supreme Court
repeatedly has applied these principles in determining the scope of executive power
under Article II of the Constitution, see, e.g., Curtis-Wright, 299 U.S. at 327-328, 57
S. Ct. at 224-225; Hampton, 276 U.S. at 411-412, 48 S. Ct. at 352-353; Myers v.
United States, 272 U.S. 52, 175, 47 S. Ct. 21, 45 (1926), and the scope of judicial
power under Article 1II, see, e.g., Vermont Agency of Natural Resources v. Stevens,
529 U.S. 765,774, 120 S. Ct. 1858, 1863 (2000); Northern Pipeline Constr. Co. v.
Marathon Pipe Line Co., 458 U.S. 50, 64-70, 102 S. Ct. 2858, 2867-2871 (1982)
(plurality opinion); Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 351-352
(1816).
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As the Ninth Circuit has explained, "the use of the recess provision to appoint
federal judges has been inextricably woven into the fabric of our nation." Woodley,
75 i F.2d at 1012. That practice is as old as the Nation, continues to the present day,
involves literally hundreds of appointments, has been repeatedly approved by the
Senate, and has been repeatedly upheld by the courts. Senator Kennedy's lone
amicus filing here, based on what he describes only as "inevitable tension" between
assertedly competing constitutional provisions (Br. 26), is too little and too late to
warrant the judicial invalidation of such a centuries-old practice.
1. The Executive Branch has made judicial recess appointments since the first
Administration of George Washington. On November 28_ 1789, less than nine months
after the Constitution had become effective, President Washington recess-appointed
Cyrus Griffin to the District Court for the District of Virginia. See S. Buck et al.,
Judicial Recess Appointments: A Supwey of the Arguments 26 (hereafter "'Judicial
Recess Appoinmlents") (attached to this brief at Tab C). In 1791, Washington recess-
appointed Thomas Johnson to the Supreme Court of the United States, and, in 1795,
he recess-appointed John Rutledge to be the second Chief Justice of the United
States. ld. at 25-26. In all, Washington made nine known judicial recess
appointments. 1bid. Washington himself had served as President of the Constitutional
Convention, and his Cabinet included Alexander Hamilton and John Jay, both
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contributors to The Federalist Papers, as well as Edmund Randolph. As Secretary
of State, Jay would have made out and recorded the judges' commissions, see Act of
September 15, 1789, § 4, 1 Stat. 68, and Randolph was specifically advised of the
appointments, see 30 The Writings of George Washington 472-73 (J. Fitzpatrick ed.
1939). There is no indication that any of them doubted the consttufionality of these
appointments.
Judicial recess appointments continued in the ensuing Administrations of
Presidents Adams, Jefferson, Madison, and Monroe. Those Presidents made three,
eight, one, and eight known judicial recess appointees respectively, including four
recess appointments to the Supreme Court. See Judicial Recess Appointments,
supra, at 15-16. Thus, by the end of the Monroe Administration in 1825, the first five
Presidents had made a total of 29 known judicial recess appointments, including six
recess appointments to the Supreme Court. Despite the frequency of this practice,
and the visibility of the appointments, there were no noted objections. As one
commentator has explained: "During this period, when those who wrote the
Constitution were alive and active, not one dissenting voice was raised against the
practice." Note, Recess Appointments to the Supreme Court - Constitutional But
Unwise?, 10 Stan. L. Rev. 124_ 125 (1957).
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Judicial recess appointments have continued ever since. Over the course of this
Nation's history, 37 of our 43 Presidents have made a total of 308 known judicial
recess appointments. See Judicial Recess Appointments, supra, at 16-17. With the
sole exception of Presidents William Henry Harrison and John Tyler, who together
served during one presidential term between 1841 and 1845, every President until
President Nixon made at least one judicial recess appointment. Ibid. President
Truman alone made 39 such appointments, the first President Roosevelt made 30,
President Eisenhower made 27, and Presidents Coolidge and Kennedy made 25 each.
Id. at 16. Fifteen Supreme Court Justices have received recess appointments,
including the first Justice Harlan, Chief Justice Warren, Justice Brennan, and Justice
Stewart. Id. at 15. Other prominent judges to receive recess appointments have
included David Bazelon, Griffin Bell, Augustus Hand, Leon Higginbotham, Thurgood
Marshall (to the Second Circuit), and Spottswood Robinson. Id. at 17-20.
2. The Senate has acquiesced in and affirmatively approved the practice of
judicial recess appointments. During the Washington Administration, the Senate,
which at the time included "many eminent members of the Convention which formed
the constitution" (Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 420 (1821)), raised no
objection to the judicial recess appointments of our first President. On February 9,
1790, Washington nominated his first judicial recess appointees pursuant to the
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Appointments Clause, and he specifically informed the Senate that the nominees had
already received recess appointments. One day later, the Senate confirmed them
without objection. Executive Journal of the Senate, Vol. I, pp. 38, 40 (1790). The
Senateultimately confirmed eight of Washington's nine known judicial recess
appointees, see Judicial Recess Appointments, supra, at 25-26, without (to our
knowledge) any recorded objection to the recess appointments. The only recess
appointee who did not ultimately receive Senate confirmation was Chief Justice
Rutledge, whose permanent nomination was rejected not because of objection to the
recess appointment, but because Of Rutledge's strong opposition to the Jay Treaty.
See, e.g., Exparte Ward, 173 U.S. 452, 454-455 n.l (1899) (reporter's note).
During ensuing administrations, the Senate has continued to confirm judicial
recess appointees for permanent judicia! appointments. Of the nineteen individuals
who received known judicial recess appointments from Presidents Adams, Jefferson,
Madison, and Monroe, every one was ultimately confirmed as an Article III judge.
Eighteen were confirmed as permanent appointees to the courts on which they had
been serving as recess appointees. See Judicial Recess Appointments, supra, at 25.
The nineteenth individual was Henry Livingston. In 1805 and 1806, he served out a
term as a recess appointee to the District Court for the District of New York, then
received another recess appointment to the Supreme Court, and then was confirmed
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as a permanent appointee to that Court. See ibid. To our knowledge, in none of these
confirmation proceedings did any Founding-era Senate object to the practice of
judicial recess appointments. In total, the Senate has ultimately confirmed some 271
of the 308 known judicial recess appointees. See id. at 16.
The Senate has manifested its approval ofjudicial recess appointments in other
ways as well. Despite refusing to confirm Chief Justice Rutledge as a permanent
appointee to the Supreme Court, the Senate joined the House in appropriating funds
for a bust and portrait honoring his service as Chief Justice; thus, "it appears that * *
• both Houses of Congress have recognized [Rutledge] as one of the Chief Justices."
Ex parte Ward, 173 U.S. at 456 (reporter's note). Moreover, as noted above,
Congress has enacted statutes addressing compensation for recess appointees, which
do not purport to exclude judicial recess appointees (or intra-session recess
appointees) from eligibility for compensation. See 5 U.S.C. § 5503(a); 28 Comp.
Gen. at 34-36.
Finally, even on those few occasions when the Senate has requested the
President to make fewer judicial recess appointments, it has affirmatively
acknowledged the constitutionality of such appointments. In 1960, after Presidents
Truman and Eisenhower had made 66judicial recess appointments between them, see
Judicial Recess Appointments, supra, at 16, the Senate adopted a formal resolution
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urging Presidents to make fewer such appointments. See S. Res. 334, 86th Cong.
(1960), reprinted in 106 Cong. Rec. 18130-18145 (1960). Even in that context, the
Senate not only declined to assert that such appointments are unconstitutional, but
affirmatively conceded that they are constitutional. Senator Hart, who sponsored that
resolution, explained:
If there ever was ground for the argument that the more specific language of
article III of the Constitution should be construed as excluding judiciary
appointments from the general authorization given the President in article II, time
has answered it. The President does have such power and this resolution does
not argue otherwise.
ld. at 18130 (emphasis added).
3. Since the Framing, courts and judges have also recognized the
constitutionality of judicial recess appointments. When John Rutledge was recess-
appointed as Chief Justice in 1795, four of the six members of the Supreme Court
(including Rutledge himself) had signed the Constitution. Compare Const. (list of
signatories) with G. Gunther, Constitutional Law App. B, at B 1 (12th ed. 1991 ) (list
of Justices). None of them objected to the appointment. To the contrary, the "other
members of the court acted with [Rutledge] as [Chief Justice] without objection." Ex
parte Ward, 173 U.S. at 456 (reporter's note). A fifth member of that Court, James
lredell, upon learning that John Jay had resigned as the first Chief Justice, opined that
the President could, under the Recess Appointments Clause, "make a temporary
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appointment" of his successor. See 2 G. McRee, Life and Correspondence of James
Iredel1447-448 (1857).
Finally, in the only reported cases involving constitutional challenges to judicial
recess appointments, the Second and Ninth Circuits have held such appointments to
be constitutional. See Woodley, 751 F.2d at 1009-1012; Allocco, 305 F.2d at 708-709.
Sitting en banc in Woodley, the Ninth Circuit relied on both the text of the Recess
Appointments Clause, which it said affords "no basis upon which to carve out an
exception from the recess power for federal judges" (751 F.2d at 1010), and the
historical record, which establishes what that court described as "unbroken
acceptance of the President's use of the recess power to appoint federal judges by the
three branches of government" (id. at 1011 ). Similarly inAlloc¢o, after reviewing the
same textual and historical materials, the Second Circuit had no trouble concluding that
the Recess Appointments Clause "permits the President to appoint Justices of the
Supreme Court and judges of inferior courts to serve for a limited period." 305 F.2d
at 709.
C. Judicial Recess Appointments Are Consistent With Article IlI
In contending that judicial recess appointments are unconstitutional, Senator
Kennedy does not dispute that the "Vacancies" subject to the Recess Appointments
Clause must as a textual matter encompass the offices of"Officers" subject to the
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Appointments Clause, including "Judges." Nor does Senator Kennedy seriously
dispute that judicial recess appointments have been a settled and accepted practice
throughout American history. Instead, relying exclusively on the dissenting opinion
in Woodley, he contends that there is an "inevitable tension" (Br. 26) between the.
appointment provisions of Article II and the Good Behavior Clause of Article III,
which states that judges "shall hold their Offices during good Behavior" (Art. III, § 1).
He further contends that this "tension" should be resolved in favor of Article III (Br.
27-28), based apparently on an open-ended inquiry into the "competing values
animating the two clauses" (Woodley, 751 F.2d at 1022 (Norris, J., dissenting)). This
analysis is seriously flawed.
To begin with, the Constitution is not, as Senator Kennedy contends, internally
incoherent on the question of recess appointments for judges. The Appointments
Clause makes unambiguously clear that "Judges" are among the "Officers" eligible to
receive recess appointments. Art. II, § 2, cl. 2. Moreover, the Recess Appointments
Clause makes unambiguously clear that such recess appointees receive a fixed term
of office until "the End of' the "next Session" of the Senate. Art. II, § 2, cl. 3. And
the Good Behavior Clause, which provides that "Judges * * * shall hold their Offices
during good behavior" (Art. III, § 1), has meaningful application to judicial recess
appointees: Absent that clause, the President's express power to appoint judges
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would at least arguably give rise to an implied power to remove them. SeeMeyers v.
United States, 272 U.S. 52, 47 S. Ct. 21 (1926). The Good Behavior Clause,
however, forecloses such an inference for judges, and thereby protects judicial recess
appointees from removal by the President during their constitutionally-fixed terms of
office.
Moreover, Senator Kennedy errs in his proposed methodology for resolving
whatever "tension" might exist among these assertedly competing constitutional
provisions. As the Supreme Court has instructed, the Constitution must be regarded
as "one instrument, all of whose provisions are deemed to be of equal validity." Prout
v. Starr, 188 U.S. 537, 543, 23 S. Ct. 398, 400 (1903). Thus, when confronted with
assertedly conflicting constitutional provisions, a court's task is not to choose
between them based on amorphous judgments about relative value, but to construe the
Constitution to "give effect to both provisions, as far as it is possible to reconcile
them and not to permit their seeming repugnancy to destroy each other." Cohens v.
Virginia, 19 U.S. (6 Wheat.) at 393. As explained, above, our construction honors
the unambiguous appointments provisions of Article II and gives meaningful impact
to the Good Behavior Clause as applied to judicial recess appointees. Moreover, to
the extent that the Good Behavior Clause might otherw:ise give rise to life tenure of its
own force, but cf. Ex parte Hennen, 38 U.S. (13 Pet.) 230, 259 (1839) (Good
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Behavior Clause implies life tenure for"offices, the tenure of which is not fixed by the
Constitution" (emphasis added)), our construction would give effect to the term of
office explicitly set forth in the Recess Appointments Clause over the implication of
life tenure from the more general and less precise language of the Good Behavior
Clause, consistent with ordinary interpretive principles. By contrast, Senator
Kennedy's proposed construction would substantially alter a constitutional structure
that explicitly authorizes the President to make recess appointments for "all" vacancies
/involving judicial or executive "Officers of the United States." Thus, to the extent any
tension exists, it is most sensibly resolved by applying the Recess Appointments
Clause according to its terms.
Finally, even apart from these textual and stnictural considerations, Senator
Kennedy's proposed focus on "competing values" entirely ignores the role of history
in constitutional interpretation. No case explains the "values" of the Good Behavior
Clause more broadly or more forcefully than does Justice Brennan's plurality opinion
in Northern Pipeline. See 458 U.S. at 58-60, 102 S. Ct. at 2864-2866. Yet even that
opinion, in reaffirming a constitutional tradition that permits non-tenured judges to
preside over territorial courts and courts martial, and permits Executive Branch
officials to preside over adjudications involving public rights, explained that the Good
Behavior Clause must be construed by reference tc other constitutional provisions and
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by reference to "historical consensus." See id. m 70, 102 S. Ct. at 2871. That
principle alone decides this case. As explained above, "historical consensus" is
particularly significant for widespread practices beginning at the Framing and
continuing to the present; this case unquestionably involves such a practice; and
whatever the proper limits on the use of history in constitutional adjudication, such
practices cannot possibly be set aside based on nothing more than an asserted
constitutional ambiguity and a generalized appeal to constitutional "values. ''5
Senator Kennedy might well be correct to suggest (Br. 22-23) that Congress's
refusal to pay judicial recess appointees during their terms of office would violate the
Compensation Clause of Article III, which provides that judges "shall, at stated Times,
receive for their Services, a Compensation, which shall not be diminished during their
Continuance in Office" (Art. III, § 1). But if so, that would follow from a
straightforward harmonization of the constitutional provisions at issue: the Recess
Appointments Clause, which establishes a fixed term of office for judicial recess
appointees; the Good Behavior Clause, which establishes tenure protection during that
fixed term of office; and the Compensation Clause, which requires a minimum and
non-decreasing salary during that fixed term of office.
In this case, because Judge Pryor's nomination was pending before the Senate
at the beginning of the recess in which he was appointed, and because Judge Pryor
had not received a previous recess appointment, he satisfies the requirements for
compensation imposed by Congress on recess appointees generally. See 5 U.S.C. §5503(a)(2). Accordingly, this Court need not reach the question whether, in other
circumstances, Congress could constitutionally deny compensation to judicial recessappointees.
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D. Senator Kennedy's Alternative Arguments Are Meritless
Senator Kennedy briefly contends that, even if judicial recess appointments are
generally permissible, Judge Pryor's particular appointment is unconstitutional because
it was made during an intra-session recess (Br. 28) and because it assertedly
circumvents Senate prerogatives (Br. 29-30). These contentions are insubstantial.
1. Despite Senator Kennedy's suggestion to the contrary, there is no
conceivable basis for holding the Recess Appointments Clause inapplicable only to
intra-sessionjudicial recess appointments. The Clause either applies or does not to
intra-session appointments, depending on whether the phrase "during the Recess of
the Senate" refers to recesses generally or refers only to inter-session recesses. And
the Clause either applies or does not to judicial appointments, depending on whether
the Good Behavior Clause is construed to override the specific imposition of a fixed
term of office in the Recess Appointments Clause. One of Senator Kennedy's legal
theories would require the invalidation of all intra-session recess appointments, and the
other would require the invalidation of all judicial recess appointments. Senator
Kennedy's apparent reluctance to embrace the consequences of his own arguments
only underscores the extent to which each would require a radical deviation from
settled practices and understandings.
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2. This Court should decline Senator Kennedy's invitation to determine, based
on a totality of the circumstances, whether particular recess appointments are
sufficiently deferential to the Senate. That inquiry finds no support in the text,
structure, or history of the Recess Appointments Clause; is particularly inappropriate
for resolving contentious inter-branch disputes such as those over judicial
appointments (see Plaut, 514 U.S. at 239, 115 S. Ct. at 1462-1463); and is not
judicially manageable in any event. Of course, the President and the Senate may
disagree about the appropriateness of particular recess appointments based on
subjective considerations such as the length of the recess at issue (beyond the three-
day minimum specified in Art. I, § 5, ci. 4), the importance of the position at issue, and
the degree of exigency confronting either the Senate or the Executive Branch. But the
task of weighing these considerations in individual cases is ultimately a political
question, because it involves both a "lack of judicially discovered and manageable
standards" and the "impossibility of deciding without an initial policy determination of
the kind clearly for nonjudicial discretion." Baker v. Carr, 369 U.S. 186, 217, 82 S.
Ct. 691,71 O; see also Veith v. Jubelirer, 124 S. Ct. 1769, 1778-1779 (2004) (plurality
opinion) ("Laws promulgated by the Legislative branch can be inconsistent, illogical,
and ad hoc; law pronounced by the courts must be principled, rational, and based
upon reasoned distinctions.").
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Finally, we note that the recess appointment power is subject to various political
controls, and to the extent the Senate itself concludes that the President has been
insufficiently deferential in his recess appointment practices, it is hardly lacking in
effective responses. This case illustrates that point. Senator Kennedy complains that
Judge Pryor received a recess appointment after a minority of Senators, through a
filibuster, repeatedly prevented the Senate from voting on a still-pending nomination
supported by a majority of Senators. See 149 Cong. Rec. S 10455 (daily ed. July 31,
2003); 149 Cong. Rec. S14097 (daily ed. Nov. 6, 2003). In response, however,
Senator Kennedy threatened even more filibusters, see Statement on Recess
Appointments, Office of Senator Edward M. Kennedy (Mar. 11, 2004), and the
political branches ultimately reached an accommodation in which the President agreed
not to invoke his recess appointment authority for the remainder of his current term,
and a sufficient number of Senators agreed not to filibuster 25 judicial nominees, thus
permitting the Senate to proceed to votes on their confirmation. See H. Dewar,
"President, Senate Reach Pact On Judicial Nominations," Wash. Post (May 19, 2004).
For more than two centuries, Presidents have made intra-session recess
appointments and judicial recess appointments without preventing the Senate from
exercising and enforcing its own prerogatives with respect to confirmation. This Court
has neither the need, nor the power, to upset that settled balance.
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CONCLUSION
For the foregoing reasons, the Court should uphold the constitutionality of
Judge Pryor's appointment.
Respectfully submitted,
THOMAS L. SANSONETTI
Assistant Attorney General
PETER D. KEISLER
Assistant Attorney General
JEFFREY BOSSERT CLARK
Deputy Assistant Attorney General
J. MICHAEL WIGGINS
Depu_ Associate Attorney General
ETHAN G. SHENKMAN
R. JUSTIN SMITH
AttorneysEnvironmental and Natural
Resources Division
Department of Justice
Washington, D.C. 20530
GREGORY G. KATSAS
Deputy Assistant Attorney General
DOUGLAS N. LETTER _ _.
(202) 514-3602MATTHEW M. COLLETTE
(202) 514-4214
Attorneys, Appellate StaffCivil Division, Room 9008
Department of Justice
Washington, D.C. 20530-0001
JULY 2004
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CERTIFICATE OF COMPLIANCE
I certify that the foregoing brief is proportionally spaced, has a serif type face
(Times New Roman) of 14 points, in Wordperfect 9, and contains 11,022 words,
according to the word processing system used to prepare this brief. I understand that
a material misrepresentation can result in the Court striking the brief or imposing
sanctions.
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CERTIFICATE OF SERVICE
I hereby certify that on this 30th day 0f July, 2004, I caused the foregoing Brief
for the Intervenor United States to be served upon the Court by causing 20 copies to
be delivered via FEDERAL EXPRESS to this Court's clerk's office and by causing
two copies to be delivered via FEDERAL EXPRESS (unless otherwise noted) to:
Richard A. Carothers, Esq.
Thomas M. Mitchell, Esq.
Carothers & Mitchell, LLC4350 South Lee St.
Buford, Georgia 30518
Chris Jensen, Esq.
Clark E. Gulley, Esq.
Foster, Jensen & GulleySuite 1009
1447 Peachtree St., NE
Atlanta, Georgia 30309-3027
Senator Edward M. Kennedy
Dirksen Senate Office BldgRoom SD-520
Washington, DC 20510
(served by email and by U.S. mail)
Counsel for the United States
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ATTACHMENT B
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_a=" 8e ¢ice
Memorandum
SUBJECT: Intrasession Recess Appointments
FROM: Henry B. Hogue
Analyst in American National GovernmentGovernment and Finance Division
April23,2004
Under the Constitution, the President and the Senate share the power to make
appointments to the highest-level political appointee positions in the federal governmentJ
The Constitution also empowers the President unilaterally to make a temporary appointment
to such a position if it is vacant and the Senate is in recess. 2 Such an appointment, termed
a recess appointment, expires at the end of the following session of the Senate. It may be
made only between sessions or Congresses, when the Senate is adjourned, or during a_ession, when the Senate is in recess. A recess appointment during an adjournment is termed
an intersession recess appointment, while one made during a session is termed an
intrasession recess appointment. This memorandum identifies all known intrasession recess
appointments to full-time positions (excluding military and civilian career service
appointments). 3 Table 1 summarizes these appointments by President and year. Tables 2-
13, organized chronologically, by President, provide appointment and recess information for
each full-time intrasession recess appointment.
The research underlying this memorandum relied on the best available sources of
historical information about presidential recess appointments. It is only in the last 40 years,
however, that recess appointments have been recorded in a reliable way. Every effort has
been made to provide the most accurate information possible. Only since 1965, With the
publ!cation of the Weekly Compilation of Presidential Documents (Weekly Compilation)
have reliably accurate figures regarding recess appointments, whether intrasession or
intersession, been available. Before 1965, information regarding a recess appointment
' U.S. Constitution, Article 2, Section 2, clause 2.
2 Article 2, Section 2, Clause 3 reads, "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 Endof their next Session."
3 For further general information related to recess appointments, see CRS Report RS21308, RecessAppointments: Frequently Asked Questions, by Henry B. Hogue. For further information on recess
appointments to the federal judiciary, see CRS Report RL31112, Recess Appointments of FederalJudges, by Louis Fisher.
Congressional Research Service Washington,D.C. ?0540-7000CRS preparedthismemorandumtoenable distributionto morethanone congressionalclient.
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C_S -2
appeared in the Congressional Record when the President submitted a nomination and
indicated that the nominee had been given a recess appointment, and in the Journal of the
Executive Proceedings of the Senate, where nominations received from the President are
recorded. Not all recess appointments, however, are included in either of these two sources,
because the President has not always indicated that a nominee had been given a recess
appointment, and not all recess appointees are later nominated. Moreover, it is not always
clear from the information in the Congressional Record and the Journal of the Executive
Proceedings of the Senate whether a recess appointment applied to one nomination or a
group of nominations listed in those documents. The Office of the Executive Clerk in the
White House maintains a record of recess appointments, but information on appointments
made before 1968 apparently is limited or nonexistent. Some of the information from the
Weekly Compilation is also found in the volumes of the Public Papers of the Presidents ofthe United States.
Congressional Research Service Washington, D.C. 20540-7000CRS prepared this memorandum to enable distribution to more than one congressional client.
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C_S-3
Table 1. Intrasesslon Recess Appointmentsto Full-Time Civilian Positions Through April 22, 2004
President and total number of recess appolnlmmt_
.Andrew Johnson (14)
1867
WarrenG, Bard/ng(1)
1921
Calvin Coolidge(I)
1928
Franklin D. Roosevelt (6)
19431944
Harry S Truman (104)
19451947194819481950
Dwight
19541960
D. Eisenhower 08)
RIchard M. N'Lxon(7)
19701971
James E. Carter(6)
19791980
RonaldW. Reagan (36)
Number by recess
14
34327229
308
Days Senate recessed
73'
27
13
6753
34112 -'3514564
7935
3232
3241
19811982198219831984198519851988
George H. W. Bush (8)
199119921992
5 361 188 581 389 232 137 383 26 .
3 381 174 26
i Congreealonal Research Service Washington, D.C. 20540-7000CRS prepared this memorandum to enable distribution to more than one congressional client,
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CRS-4
President and total number of recess appointments
William J. Clinton (39)
199619961996199619971997'199819991999200O2001
George W. Bush (25) b
Number by recess
200120022002200320032OO420O4
5514112!1171
Days Senate recessed
111693116323010333911
311632
• 16311010
• The Senate recessed on Mar. 30, 1867. It reoanvened in executive session for a special session from Apr. 1 - Apr. 20,1867. It then reconvened on July 3, 1867. The elapsed time from Apr. 20 - July 3, 1867 was 73 days. See note to Table2 for a further discussion.
b Through April 22, 2004. unlike the sections for previous presidencies in tl_ table, this section covers in_sion recess
appointments for only part of a presidency. Consequently, comparisons of the entries with those of other presidenciesshould be made cautiously.
Congressional Research Service Washington, D.C. 20540-7000CRS prepared this memorandum to enable distribution to more than one congressional client.
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ATTACHMENT C
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From: S. Buck, et al., Judicial Recess Appointments." A Survey of the Arguments, The Federalist
Society, at http://wg'w.fed-soc.org/pdf/recapp.pdf
APPENDIX A
Recess appointments of U.S. Supreme Court justices
Stewart_ Potter
B rennan, William J.
Warren, Earl
Holmes_ Oliver W.
H arlan_ John M.
Davis_ David
Curtis_ Benjamin R.
Woodbury, Levi
McKinley, John
Thompson_ Smith
Livingston r Henry B.
_Moore_ AlfredWashington, Bushrod
Rutledge, John
Associate
Associate
Chief
Associate
10/14/1958 Confirmed 5/5/1959
10/15/1956 Confirmed 3/191195"/
10/2/1953 Confu'med 3/I/1954 •
8/11/1902 Confirmed 12/4/1902
Associate 3/29/1877 Confirmed 11/29/1877
Associate 10/17/1862 Confirmed 12/8/1862
Associate 9/22/1851 Confirmed 12/20/1851
Associate 9/20/1845 Confu'med 1/3/1846
Associate 4/22/1837 Confirmed 9/25/1837
Associate 9/1/1823 Confirm. ed 12/19/1823
Associate 11/10/1806 Confirmed 12/17/1806
Associate 10/20/1799 Confirmed 12/10/1799
Associate 9/29/1798 Confirmed 12/20/1798
7/1/1795Chief Recess app't expired12/15/1795 after failed
nomination
Johnson, Thomas Associate 8/5/1791 Confirmed 11/7/1791
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APPENDIX B
Number of recess-appointed judges by President _
W. Bush NONE N/A
George H.W. Bush (1989-93)Ronald Reagan 41981-89)
Jimmy Carter (197%81)Gerald Ford (1974-77)
Richard M. Nixon 41969-74)
Lyndon B. Johnson (1963-69)
Job- r Kennedy 41961-63)Dwight D. Eisenhower (1953-61)
Harry S Truman (1945-53)Franklin D. Roosevelt (1933-45)
Herbert Hoover (1929-33)
Calvin Coolidge (1923-29)
Warren G. Harding (1921-23)Woodrow Wilson 41913-21)
Witli -m _ Taft 41909-13)Theoaore _oosevelt ( 1901-09)
William McKinley (1897-1901)
Grover Cleveland (1893-97)Benjamin Harrison (1889-93)
Grover Cleveland (1885-89)
Chester Arthur (1881-85)James A. Garfield (1881)
Ru Ibrd B. Hayes 41877-81)
Ulysses S. Grant (1869-77)
Andrew Johnson (1865-69)Abraham Li---I- ¢t _ 1-65)James Buchanan _1_31-61)
Franklin Pierce (1853-57)
Millard Fillmore (1850-53)
Zachary Taylor (1849-50)James Polk 418_5--49)John Tyler (1841-45)
William Henry Harrison (1841)
Martin Van Buren (1837-41)Andrew Jackson (1829-37)
John Quincy Adams (1825-29)
James Monroe (1817-25)
1 1/1
NONE
NONE
1NONE
N/A
N/A
0/1N/A
NONE N/A
4 3/425 25/25
27 26/27
39 33/3915 13/15
9 8/925
30
22/25
5/5
7/91/5
26/30
11 9/I I7 6/7
7 7/7
5/54/42/2
3/36/7
3/38/91/1
2/4
1 1/12 2/2
2 2/2 "
NONE N/A
NONE N/A3 3/3
5 4/5
6 5/6
8 8/8
66. Not included in the total number of recess appoin.tments for each President are those appointmentsthat were declined by the temporary appointee. Also not included are three appointees in the early 1800sfor which detailed information about the appointment is not available (i.e. whether the commission wasaccepted and, if so, whether the nominee was subsequently confirmed). See Appendix C.
16
1 1/1
8 7/8
3 3/3
9 8/9
APPENDIX C
Recess appointments of federal judges
N0_iTO DATE I I ,[o |
Gregory, Roger | 4th Cir, 12/27/2000 Confirmed 7/20/2001 10 years, 8I months
.,, _" " ::'3_',_¢_ '_- -_"_-" ":_ "'_c*."_":L__.EYe "tr'-?'- " _',_..'%:
Heen, Waiter M. D. Haw. I/I/1981 Recess app't expired 2 years12/16/1981 after failednomination
NO E I I ,
Davis, John M. E.D. Pa. I/7/1964 Confu'med 3/14/1964 2 years, 6
Robinson, SpottswoodW.
Nealon, William J.
Decker, Bernard M.
months
gabinovitz, David W.D. Wis. 1/7/1964 Recessapp't expired 1 year "10/3/1964 after failednomination
Higginbotham, A.L. E.D. Pa. 1/6/1964 Confirmed 3/14/1964 2 years, 4.5months
D.D.C. I/6/1964 Confirmed 7/1/1964I
M.D. Pa. 12/13/1962 Confu'med 3/15/1963
N.D. Ill. 12/12/1962 Confirmed 3/28/1963
Almond, James L. 10/23/1962 Confirmed 6/28/1963Customs &Patents
Appealsam rmed 2/17/1962
r _med 2/7/1962
[ Roscnberg, Louis [ W.D. Pa, [ [ 1/20/1961 [ Confirmed 7/10/1962
3 years, 7.5weeks
8.5 months
6 months, 3weeks
IIdays
m
6.5 months
6 months
6 months
17
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Winter r Harrison L.Preyer, Ltmsford R.Bell, Griffin B.
Bonsai, Dudley B.
Brcwster_ Henry L.
Cooper_ Irving B.Daugherty, Frederick A.
D. Md. 11/9/1961 Confirmed 2/711962 5.5 months
M.D.N.C.5th Cir.
10/7/1961
10/5/1961
S.D.N.Y. 10g/1961N.D. Tex. 10_/1961
S.D.N.Y. 10/5/196110_/1961N.D. Okla.
& E.D.Okla. &W.D. Okla.
Confirmed2/7/1962Confirmed 2/5/1962
C. imed 3/16/1962
C, imed3/16/1962C. ,meal 9/20/1962
C, imed 2/7/1952
4.5 months
5
4.5 months4.5 months
4.5 months4.5 months
Gewin, _Valter P.
Green, Ben C.
Hays, Paul R.Hughes_ Sarah T.
Marshall, ThurgoodNoel_ James L.
Peck_ John W.Rosling, George
Smith, Talbot
Spears t Adrian A.Allgood, Clarence W.
_WlGHT_SE_O3
5th Cir. 10/5/1961 4.5 months
N.D. Ohio2nd C_.
N.D. Tex.2nd Cir.
10/5/1961
E.D. Mich.
I Confirmed 2/5/1962med 6/29/1962 4.5 months
10/5/1961 med 3/16/1962
10/5/1961 I Confm'ned 9/11/1962Confirmed 3/16/1962
4.5 months
4.5 months4.5 monthsS.D. Tex. 10/5/1961
S.D. Ohio 10/5/196l Confirmed4/11/1962 4.5monthsE.D.N.Y. 10/5/1961 Confirmed3/16�1962 4.S months
10/5/I
9/23/1961
10/30/1960
N.D. Ala.
D. Mass.
Confirmed 2/5/1962
Confirmed 8/9/I 961Caffrey, Andrew A.Feikens, John E.D. Mich. 10/13/1960 Recess app't expired 7 months
9/27/1961 after failednomination
Tavares_ C-_ N. D. Haw. 10/13/1960 Confirmed 9/21/1961 7.5 weeksHenley, J. Smith E.D. Ark. 10/25/1958 Confirmed 9/2/1959 7 weeksBoreman_ Herbert S. 4th Cir. 10/17/1958 Confirmed 6/16/1959 7 monthsStewart, Potter S. Ct. 10/14/1958 Confirmed 5/5/1959
N.D. Ill. 9/29/1958 Confirmed 4/29/1959 5.5 weeks
D.D.C. 8/29/1958 6 months10/23/1957M.D.N.C.
2nd Cir. 9/6/1957
S. Ct. 10/15/195610/22/1955
8/17/1955M.D. Fla. 8/13/1955
C, med 9/9/1959
C, med 2/25/1958
C, med 2/25/1958
C, med 3/19/1957C, reed 3/1/1956
Confirmed 3/1/I 956
S.D.N.Y.
3/1/1956
8/12/1955 [ Confirmed 6/26/1956
4 months
5 months
Confirmed 3/I/1956D. Md.
Robson_ Edwin A.
Hart, George L.Stanley_ Edwin M.
Moor% Leonard P.Brennan_ W!lliam J.
Kerr, Ewing T.Cashin_John M.
B.
Watkins r Robert D.Devittt Edward J.
Bastian_ Waiter M.
18weeks
8 months
NoneNone
17days6weeks
I0months
Is
8/I 2/1955 I 0 weeks
D. Minn. 12/10/1954 Confirmed 2/4/1955 2 months
D.C. Cir. 9/20/1954 Confirmed 12,/2/1954 10 weeksE.D. Tex. 8/31/1954Cecil, Lamar R.
Mickelso_ George T.
Schnackenberg_ Elmer J.
Day_ Edward W.Hincks: Carroll C.
Hunter_ Edwin F.
D.S.D. 12/9/1953
7th Cir. 11/17/1953
D.R.I. 11/10/1953
2nd Cir. 10_/1953 Con
W.D. La. .10/3/1953
(['
([',
C,
(?or.
Col'.
ned 12/.2/1954 6.5 months
ned 2/9/1954 None
ned 2/9/1954 11 months
led 2/9/1954 16 weeks
_ed 2/9/1954 13 weeks
led 2/9/1954 28 weeks
18
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Friedman, Monroe M.
Edelstein t David N.Tolin, Ernest A.Bastian, Walter M.
N.D. CaL
S.D.N.Y.
7/17/1952
i 1/1/1951
Recess app't expired 1 year, 47/24/1953 after failed monthsnomination
Confi " "
Confirmed 6/10/1952S.D. Cal. 10/30/1951D.D.C. 10/23/1950 Confirmed 12/14/1950 2 monthsNone
Carter, Oliver J.
Taylor, Robert L.Andrews, Maurice N.
Bazelon, David L.Bums, Owen M.
Claw, Thomas J.Fahy, CharlesGrim, Allan K.
Hastie, William H.Hill, Delmas C.
Hooper, Frank A.Kaufman, Irving R.
Kirklar_.ck James R.McGohey, John F.X.r"
Matthews, Bumita S.
Noonan, Gregory F.X.
Ritter, Willis W.Gus J.-
- • ardress N.• • . • iarroll O.
Wright,'James S. " "
Sugarman, SidneyHenderson, David E.
Harper, Roy W.
Kaufmag.., Samuel H.
Rao, Paul P.Tamm, Edward A.
Harper, Roy W.
Ryan, Sylvester J.Harper, Roy W.
N.D. Cal.
E.D. Tenn.N.D. Ga.
9/27/1950
11/2/194910/21/1949
] Confirmed 12/13/19503/8/I 950
Resigned 10/31/1950after failed nomination
8 weeksNone
None
D.C. Cir. 10/21/1949 Confirmed 2/8/1950 11 weeks
W.D. Pa. 10/21/1949 Conffurned 3/8/1950 11 weeks
E.D. Pa. 10/21/1949 Confirmed 3/811950 11 weeksD.C. Cir. I0/21/1949 Confirmed 4/4/1950 11 weeks
E.D. Pa. 10/21/194910/21/1949
10/21/1949I0/21/1949
10/21/1949
10/21/1949
3rd Cir.
lOth Cir.
Confirmed 7/19/1950
Confirmed 3/8/1950Confirmed 2/21/1950
Confirmed 4/4/1950Confirmed 3/8/1950
N.D. Ga.S.D.N.Y.
D.D.C.
11 weeksIlweeks
llweeks
llweeksllweeks
S.D.N.Y. 10/21/1949 Confirmed 3/8/1950 11 weeks
D.D.C. 10/21/1949 Confn'med 4/4/1950 I l weeksS.D.N.Y. 10/21/1949 Confu'med 4/25/1950 9.5 monthsD. Utah 10/21/1949 Confirmed _i/29/1950
10/21/1949 6/27/1950
10/21/1949 Confirmed 2/8/195010/21/1949
10/21/1949
10/I 5/1949
9/1/19486/22/1948
Recess app't expired8/9/1950 after failednomination
Confirmed 3/8/1950
Confirmed 4/2811950
D. Ore.
7th Cir.S.D. Iowa
E.D. La.
S.D.N.Y.
W.D.N.C. Resigned 2/14/1949Confirmed 1/31/1949
Confirmed 1/31/I 949
Confirmed 1/31/1949
6/22/1948
6/22/19486/22/1948 3/29/1949
12/20/1947 Recess app't expired6/22/1948 after failed
Confirmed 12/18/1947
Recess app't expired12/19/1947 after failednomination
S.D.N.Y.Customs Ct.
D.D.C.
S.D.N.Y. 11/I/1947
8/7/1947
21 weeks
11 weeksllweeks7.5 months
None
2.5 months
6 months4 weeks
3 months
7.5weeks7 weeks
4 weeks
I day4 weeks
19
D.D.C.
Bard, OuyK. E.D. Pa. 12/20/1939 Confirmed 4/24/1940 13.5 weeksWalker, Thomas O. D.N.J. 12/20/1939 Confirmed 3/5/1940 1 year, 6
months
BarkRd_!e, Alfred D. W.D. Va. 1211911939 Confirmed 2/111940 None
Dobie, Armistead M. 4th Cir. 12/19/1939 2 monthsConf;,-_,'d2/I/1940
Conrtrmed 219/1939Igoe, Michael L. N.D. I11. 11/21/1938 25 weeksKemer, Otto, Sr. 7th Cir. 11/21/1938 Conf'u'med 2/1/1939 25 weeks
Allred, James V. S.D. Tex. 7/11/I 938 Confirmed 2/16/1939 6 weeks
Roberts, Floyd H. W.D. Va. 71611938 Recess app't expired 5 weeks2/6/1939 after failednominafon
Druffel, John H. S.D. Ohio 9/22/1937 Confirmed 12/8/1937 I month
Davis, David J. N.D. Ala. 12/10/1935 Confirmed 1/22/1936 12 weeks
Thnm_% Seth 8th Cir. 12/2/1935 Confirmed 1/22/1936 2 daysLevitt, Albert D.V.I. 9/20/1935 Unavailable
Holly, William H.Sullivan, Philip L.
Woodburn, William
Major, James E._HERBERT.HOOVERT(!
Johnson, George E.Q.
O'DonoL Daniel W.Chestnul liam C.
, Morris A.
Fred. D.
ames A.I Kn'ighg John
[ Nordbye_ Gurmar H.' Kineheloe_ David H.
McCarthy,James W.
Borah)Wayne G.
MeV!car,Nelson
Bowen_ CrateD.Vanght, Edgar S.Moinet, Edward J. '
N.D. IlL
N.D. Ill.
D. Nev.
11/8/193311/8/1933
9/23/1933
D. IlL I 6/12/1933
N.D. Ill. 8/3/1932
D.D.C.
D. Md.4th Cir.
D.D.C.
D. Minn.
Customs Ct.
D.N.J.
10/2 8/19315/9/1931
516/19315_/1931
Resi[[ned 7/31/1936Confirmed 2/20/
3/18/1931i
Confirmed 2/2/I 934
D app't 1 year, 9
months
None
Confirmed l/23/1934 None
Recess app't expired3/3/1933 after failedno/pln_lion
Connrmed 1/26/1932
Confirmed 1/12/1932Confu-med 1/12/1932
Confirmed 2/17/1932
Letts, Ira L.
1year, 5.5months
9.5 months
days1month
day10 weeksD. Ore. 3/18/1931 Confirmed 12/22/1931
W.D.N.Y. 3/18/1931 Confirmed I/6/1932 13 daysConfirmed 2/3/1932 9.5 months
Confirmed 1/29/1931
Confirmed 1/8/1929
9/22/1930_, . :
10/6/1928
5/31/1928S.D. Fla.
None
27 weeks
E.D. La. 10/3/1928 Confirmed 12/17/1928 4 months
W.D. Pa. 9/14/1928 Confirmed 12/17/1928 29 weeks5.5 months
5/31/1928Declined app'tConfirmed 1/8/1929W.D. Okla.
E.D. Mich.D.R.I.
6/13/1927 12/19/1927
6/9/1927 I Confirmed 1/4/1928
days
14.5 weeks
None
Bryant r Frederick H.
Coleman, Frank J.Hand, Augustus N.
Coleman_ William C.
Hayes, Johnson J.Northcott, Elliotl
_ ==
N.D.N.Y. 5/19/1927 Confirmed 12/19/1927
S.D.N.Y. 5/19/1927 Confirmed 12/19/19272ridCir. 5/19/1927
D. Md. 4/6/1927
M.D.N.C. 4/6/1927
4th Cir. 4/6/1927
Confirmed 1/18/1928
Confirmed 12/19/1927
Confirmed 12/17/1927
Confmned 12/15/1927
llweeks
None1 month
5weeks
2months
lldays
20
III
II
I
III
I
Tilson, William J. M.D. Ga. 3/5/1927
Tilson, William J. M.D. Ga. 6/6/1926
Bums_ Louis H. E.D. La. 10/3/1925Parker, John J. 4th Cir. 10/3/1925
Anderson_ Harry B.McCamanL Wallace
W.D. Tenn.
9th Cir.
9/12/1925
5/25/1925
Recess app't expired3/4/1927 after failed
I
Confirmed 12/21/1925Confirmed 12/14/1925
4/24/1
Confirmed 1/29/1926
Recess app't expired5/2/1925 after failed
nomination
5.5 weeks5.5 weeks
6 weeks15weeks
9weeksNone
Clark, William L. D.N.J. 5/21/1925 Confirmed 12/17/1925 7 weeks
Johnson, Albert W. M.D. Pa. 5/21/1925 Confirmed 12/17/1925 7.5 weeks
Raymond r Fred M. W D. Mich 5/8/1925 Confirmed 12/18/1925 13 weeksHerming, Edward J. I S.D. Cal. I
Otis, Merrill E. '" "-Coc_
W,,M;I,II s, i-' II M;DI%h . - .. •
Can L William A.
Inch_ Robert A.Webster, John S.
,I"_I "" " "
D. Minn. 5/21/1923 I 15/1924E.D.N.Y. 4/28/1923 - '1924E.D. Wash. 4/28/1923 Confirmed 1/6/1924
Bakerp William E. N.D.W. Va.Luse, Claude Z. W.D. Wis.
4/4/I 921
4/1/1921
Confirmed 5/3/1921
Confirmed 4/27/1921
None4 months
15.5 weeks8 months
5.5 months
Garrett, Finis J. | W.D. Tenn. 11/22/1920 Recess app t cancelled 15 weeks| 12/7/1920
i
I
I
I
I
I
I
I
Wilson, James C. N.D. Tex. 3/5/1919 Confirmed6/24/1919 I week
Johnson, Tillman D. Utah 11/2/1915 Confirmed 1/18/1916 27 weeks
Alsehuler, Samuel 7th Cir. 8/16/1915 Confirmed 1/16/1916 3 years, 10months
Downey, George E. Ct. CI. 8/3/1915 Confirmed 1/17/1916 21 weeksPalmer, Alexander M. Ct. CI. 3/16/1915
Johnson, Joseph T. W.D.S.C.
S.D. Fla.
W.D. Wash.
3/9/1915
Call, Rhydon M.
Cheney, John M.
3/26/1913
8/26/1912
8/26/1912
Resigned 7/22/1915Confirmed 1/24/1916
7/5/1910
Howard, Clinton
Confirmed 4/24/1913
Recess app't expired31311913 area" failednomination
Recess app't expired3/3/1913 after failednnmin=tlan
8 days6 days7 months
None
5 weeks
Abbott, Edmund C.• "" _one
D.N.M. Recess commissionnever msued
6 months
Hundley, Oscar R. N.D. Ala. 3/6/1909 Recess app't expired 6 weeks5/25/1909
Purdy,Milton D. D. Minn. 3/6/1909 Resigned 5/I/1909 None
,.1 EIEODORE ROOSEVEi_'T_ 19011 09 _: - }. • ¢,<. , - -. - _, .-,, _,- .. - _ ,_-'_..._[ )., _ _, ___ ,,-_,.._,___'2_,_ ..... _,..Purdy, Milton D. D. Minn. 7/6/1908 Recess app't expired None
3/3/1909 after failed
nomination
21
III
II
II
III
III
I
II
I
I
I
Hundley, Oscar R. N.D. Ala. 5/30/1908 Recess app't expired 5 weeks3/3/1909 after failednomination
Sater_ John E.Van Orsdel r Josiah A.
Campbell, Ralph E.
Cotteral, John H.Noyes, Walter C.Sheppard_ ' t.
Ward_ Henry G.Hundley, Oscar R.
S.D. Ohio 5/30/1908 Confirmed 3/1/1909 3 weeksD.C. Cir. 11/14/1907 Confirmed 12/12/1907 4 days
5 months
2nd Cir.
E.D. Okla. 11111/1907 Confirmed 1/13/1908W.D. Okla. 11/11/1907 Confirmed 1/13/1908 21 weeks
2nd Cir. 9/18/1907 Confirmed 12/10/1907 15.5 weeksN.D. Fla. 9/4/1907 Confirmed 5/20/1908 2 months
5/18/1907 Confirmed 12/17/19074/9/1907 Recess app't expired
5/30/1908 after failednomination
N.D. Ala.
I0 days
6 weeks
Dietrick, Frank S. D. Idaho 3/19/1907 Confirmed 12/17/1907 18 daysSafer, John E. S.D. Ohio 3/18/1907 Recess app't expired 3 weeks
5/30/1908 after failednomination
N.D. Cal. 4/211907 Confirmed 12/17/1907Van Fleet, William C.Van Fleet, William C. N.D. Cal.
D. Vt.
3/4/1907 12/17/1907Confirmed i2/11/190610/20/1906Martin i James L.
Robb, Charles H. 10/5/1906 Confirmed 12/11/1906D.D.C.
Buffin£ton, JosephEwing, NathanielWolverton, Charles E.
2days2 days23days
5 days3months3rd Cir. 9/25/1906 Confirmed 12/11/1906
W.D. Pa. 9/25/1906 Confirmed 12/11/1906 NoneD. Ore. 11/20/1905 Confirmed 1/15/1906 27.5 weeks
Cotton, William W.
McComas, Louis E. D.C. Cir. 6/26/1905 Confirmed 12/6/1905 NoneD. Ore. 6/17/1905 5 weeks
Finkelnbur[_, GustavusAdams, Elmer B.
5/20/I905E.D. Mo.
8th Cir.
Atkinson, George W.Lanning, William M.
McClelland, Charles P.
Declined app'tConfirmed 12/12/1905Confirmed 12/12/1905
Confirmed 1/I 6/1906• =
Confirmed 12/8/i 902
5/20/1905
Ct. CI. 4/15/1905
D.N.J. 6/111904Customs Ct. 8/21/1903
None
Ray, George W.
Holmes, Ofiver W.McDowell t Henry C.Jones, Thomas G.
26 days5 daysI month
Unavailable
N.D.N.Y. 9/12/1902 3.5 monthsS. Ct. 8/11/1902 Confirmed 12/4/1902
W.D. Va. 11/12/1901 Confirmed 12/18/1901 11 days1 weekN.D. Ala. & 10/'//1901 Confirmed 12/17/1901
M.D. Aia.
Adams t George B. S.D.N.Y. 8/30/1901 Confirmed 12/17/1901 None
Keller FBenjamin F. S.D.W. Va. 6/18/1901 [ C_onfirmed 12/17/1901Coehran, Andrew McC. E.D. ICy. 4/24/1901
Archbald_ Robert W. M.D. Pa. 3/29/1901Trieber, Jacob
Swayn% CharlesEwart, Hamilton G.
Gray_ George
E.D. Ark. 7/26/1900
N.D. Fla. 5/17/1889W.D.N.C.
3rd Cir.
0!
, 7/1901
Confirmed 1/9/1901
Confirmed4/l/1890
4/13/1899 Recess app't expired6/7/1900 after failednomination
3/29/1899 Confirmed 12/18/1899
5 months
10 weeks
27 days
19 days
28 weeks r
None
5 weeksday
22
IIII
I
II
III
II
I
I
I
I
I
Rogers, John H.
Kirkpatrick+ AndrewMcHugh, William D.
Brown_ Arthur L.Amidon, Charles F.
Carland_ John E.
W.D. Ark.D.N.J.
D. Neb.
D.R.I.
D.N.D.D.S.D.
Adams, Elmer B. , E.D. Mo.BENJA_IIN iltARRIS ON,_I 8_ 9_3)'.,:,_,._,_Morrow, William W.
Woolson_ John S.Niles, Henry C.
Beatty, James H.
Edgerton, Alonzo J.Green, Edward T.
N.D. Cal.
S.D. IowaS.D. Miss.&N.D.Miss.
D. Idaho
D.S.D.D.N.J.
11/27/1896
11/20/1896
11/20/1896
10/15/1896
8/31/I 8968/31/18965/17/1895
9/18/I 891
Confirmed 12/15/I 896
8/11/1891
Confirmed 12/15/1896
Recess app't expired2/111897 after failed-
Confirmed 12/15/1896Confn-med 2/18/1897Confirmed 12/15/1896
Confirmed 12/9/1895
10 days6 weeks
3 weeks
llweeks
52days3weeks
None
Confirmed 1/I 1/18928/4/1891 1/11/1892
Confirmed I11111892
Ricks, A--_ ..... ' -., _ ,",,--'- ",- -09_
e, Emile H. 2rid Cir.
[ Allen, William J. S.D. III.] Simonton, Charles H. D.S.C. 9/3/1886
[" wman, William T. N.D. Ga. 8/13/1886
• ":rrick, William M. D.D.C. , 5/1/1885
esharn r Walter Q. 7th Cir. [ 10/28/1884• ._ldon, Lawrence Ct. CI. 11/24/1883
3/7/1891 '4/1892
11/19/1889 ] Con .'d 1/16/1890
10/24/1889 I Confirmed 1/27/1890
5.5weeks
6weeks
10days
7 months9 months
8 months
-- ..-_ . - . - . . ,..- . ."-
- ._-.....", .,-..-: ...'.... . . :." _ . - _ -." _. _5/26/1887 Confirmed 3/28/1888 12 weeks
4/18/1887 Con d 1/19/1888 22 daysConfirmed 1/13/1887 NoneConfirmed 1/13/1887 2 weeks
Confirmed 3/30/1886 I 1 day_z_-_j_'_ ___i_,._ ,_t__-_¢-_ _,_,._-
Confirmed 12/9/1884 I 3.5 monthsConfirmed 12/18/1883 I 19 days
awn, Addison S.D.N.Y.
arman r Alexander W.D. La.
_-ner_Ezekiel B. W.D. Tex.
ys; William H. D. K)'.rlan, John M. S. Ct.
3/20/1883 Confirmed 1/7/1884
61211881 I Confirmed 10/14/1881
11/18/1880 Confirmed 12/20/1880
9/6/1879 Confirmed 12/10/1879 39 days3/29/1877 Confirmed 11/29/1877
ansonp Alexander S.
-lker_ Martin
_pman, Nathaniel.McKiuney, John M.Winch, Joel C.C.
None11 weeks
Unavailable
2nd Cir. 10/25/1875 Confirmed 12/15/1875 6.5 weeks
N.D. Ohio 11/25/1873 Confirmed 12/8/1873 NoneD. Conn. 4/16/i 873
11/8/1870
10/11/1870
Confirmed 12/8/1873Confirmed2118/1871
Recess app't expired3/3/I 871 after failed
nomination
2 daysUnavailable
1 year, 9months
S.D. Fla.
E.D. Tex.
23
II
III
I
III
II
IiII
I
I
I
I
D.R.I. 10/9/ "
James M. D.R.I. 9/15/1869 J.
_ed _:16/1_i"Erskine John _ c 7
Busteed, Richard D. Ala. i 1/17/1863
_mas J. S.D. Fla. 10/19/1863DeLaha , Mark W. D. Karl. 10/6/1863
Lawrence William S.D. Fla. 9/9/1863Bingham, John A. S.D. Fla. 6/4/1863
Durell, Edward H. E.D. La. 5/20/1863Underwood, John C. E.D. Va. 3/27/I 863
)avid S. Ct. 10/17/186210/16/1861
.5/23/1861 i
9/29/1859
10/5/1855
10/5/1855
518/1855
9/22/1851
D._k. 1 n/5/lS49
5/9/1849
10/3/1845
9/20/1845
NONE I
Bland D. Ky.
Jones, Wilh'am G. ] S.D. Ala. &I N.D. Ala. &
M.D. A!a.
Hopkins, George W. D.C. Cir.
Love, James M. S.D. Iowa
Scarburgh, George P. Ct. CI.
__D. Md.
Confirmed 112011864
__ rmed 1/20/1864( lined 3/15/1864
-Dcclin_ap_p'tRecess app't expired714/1864
4 months
l week
None
Unavailable
Unavailable, ,
2 years, 10months
16 weeks
1 monthUnavailable
Unavailable
Confirmed 2/17/1864 16 weeks
Confirmed I 1/25/1864 I year, I Imonths
Confu'med 12/8/1862 6.5 months
(-Confirmed 7/22/186 I
Confirmed 1/30/1860
Recess app't expired8/3011856
Confirmed 2/25/1856
Recess app't expired8/30/1856
Confmned i/11/1854
Confirmed 12/20/1851
Con fn'med 5/10/1850
Confirmed 8/2/1850
Confirmed 2/3/! 846
Unavailable
2 months
Unavailable
1 monthUnavailable
Unavailable
Unavailable
5weeks
• " ,eek
[ Ni¢oll, John C. J, D. Oa. _ 5/11/1839 J Confu'med 2/17/18401 _. C--'_. _ _ 7 weeks
24
III
II
II
III
II
III
I
I
II
D. Ohio 11/1/1828
E.D. Pa.D.N.J.
John D. Ky.i . Mfred N.D.N.Y.
-Hay, GeOrge E.D.Va.
Glenn, Elias [ D. Md.
Pitman, John I D.R.I.Thnmpson_ S. Ct.Randolph, Peter D. Miss.
10/23/1828
11/10/18,
10/20/1826 " Confirmed 2/12/1827
812711825 I Confirmed 12/14/1825
7/5/1825 I Con_ed 3/31/1826
8/31/1824 ] Confirmed I/3/18258/41182"
5.5 months8 months
3 months
! 1 weeks
9'"'"')_'_19""3)5.5moo_'I6/25/1823 Confirmed 12/9/1823 Unavailable
Cuyler, Jeremiah D. Ga. 6/12/1821 :ed 1/10/1822 NoneCharlton, Thomas U.P. D. Ga. 5/15/1821 able Unavailable
Skinner, Roger , N.D,N.Y. 11/24/1819 _ed 1/5/1820 Unavailable
Bland, Theodorick D. Md. 11/23/1819 [ Confirmed 1/5/1820 5 months
Pennington, William S. D.N.J. / 6/19/1815 [ Confirmed 1/16/1816 7 weeks
Galliard, Theodore [D. La. | 4,/13/1813 ] Unavailable , I Unavailable. , • .). - _:._ _,.._._',, ;. _r._. ..... .._ ,._- _..( "" '" '," _a"_"_'."' ._t'" ' _ .i_*;_."_.
S. Ct.Livingston, Henry B.
Talimad8 e ., .. ..Livingston, Henry B. D.N.Y. 5/16/1805 Recess app't expired
4/21 / 1806Unavailable
S tephens_ William D. Ga. 10/22/1801 Confirmed !/26/1802 Unavailable
Hall_ Dominick A. 5th Cir. 7/I/1801 Confirmed 1/26/1802 4.5 monthsGalliard, Theodore 5th Cir. 5/30/1801 Unavailable Unavailable
Potter_ Henry . 5th Cir. 5/9/1801 Confirmed 1/26/1802 12 weeks
Bames_ David L. D.R.I. 4/30/1801 Confirmed 1/26/1802 10 weeksKiltT) William D.C. Cir. 3/23/1801 Confirmed 1/26/1802 None
" ,_._t_-_' _ _
Winchester, James D. Md. 10/31/1799 Confirmed 12/10/1799 8 daysS. Ct. 10/20/1799 Confirmed 12/10/1799 Unavailable
S. Ct. I 9/29/1798
D.I_I. ] IO11:,(179:
S. Ct.
Moore, Alfred
Washin_on. Bushrod
Bourne 1Benjan,;-
Rut]edge, John
Confirmed 12/20/1798 I 5.5 weeks
Cot /22/1796 I 6 weeks_,'_____J t t.qlt*_rt_ I xt _..'l.t.|
7/1/1795 I Recess app't expired 2 days
112/I 5/1795 after failednomination
25
III
II
II
II
II
IIII
I
I
I
I
Morris, RobertPaca_ William
Griffin, Cyrus
D.N.J.
D. Md.
D. Va. 8/28/179012/22/178911/28/I 789
26
Conhrmed 12/'20/1790Confirmed2/I0/1790
Confirmed 2/10/1790
Unavailable
5 months
'ks
12 _ysUnavailable
9 weeks