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From January 1981 to December 2000, there were no recess appointments made to Article III federal courts. In December 2000, however, President Clinton used a recess appointment to put Roger L. Gregory on the 4th U.S. Circuit Court of Appeals. Gregory became the first African-American to serve on that federal appellate court, which is based in Richmond, Va., and has within its jurisdiction Maryland, North Carolina, South Carolina, Virginia and West Virginia. President Bush included Gregory among the first group of the current administration’s nominees for the U.S. courts of appeals. Not long thereafter, Gregory was confirmed by an overwhelming majority of the Senate to a lifetime post on the 4th Circuit. More recently, Bush made two recess appointments of his own to the U.S. courts of appeals. On Jan. 16, Bush used a recess appointment to place U.S. District Judge Charles W. Pickering Sr. on the 5th Circuit, and, on Feb. 20, he used a recess appointment to place Alabama Attorney General William H. Pryor Jr. on the 11th Circuit. Article III of the U.S. Constitution provides that federal judges whom the president nominates and the Senate confirms are entitled to life tenure during good behavior and a salary that is not subject to being diminished. The presidential recess appointment power, found in Article II, Section 2 of the U.S. Constitution, provides: “The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” Thus, judicial recess appointees do not enjoy lifetime tenure or a salary that is not subject to diminishment. Indeed, the federal statute found at 5 U.S.C. Section 5503 prevents recess appointees under certain circumstances from receiving any salary whatsoever. There is some disagreement over whether the president lawfully may use the recess appointment power to place individuals onto Article III courts. In the past, I argued that judicial recess appointments are unconstitutional, notwithstanding the established historical pedigree that recess appointments to the federal judiciary enjoy. Although the only two federal appellate courts to consider the constitutionality of judicial recess appointments have found them to be constitutional, no federal court has addressed that question since the mid-1980s. And one of those two courts, the 9th Circuit, originally found judicial recess appointments unconstitutional in a ruling by a unanimous three-judge panel. That decision later went en banc, and an 11-judge en banc 9th Circuit panel upheld the constitutionality of judicial recess appointments by a vote of 7-4. Unlike Gregory, whom the Senate confirmed by a vote of 93-1, Pickering and Pryor are not assured Senate confirmation. In fact, both nominees have been the subject of filibusters in the Senate, and it is far from clear that the upcoming elections will result in the re-election of Bush along with a filibuster-proof Republican majority in the Senate. The U.S. Supreme Court, in June 2003, issued a decision that suggests the court may be willing finally to resolve the constitutionality of recess appointments to the Article III federal judi iary. In Nguyen v. United States, a criminal defendant objected to the lawfulness of the 9th Circuit’s affirmance of his criminal conviction because the three-judge 9th Circuit panel that decided his appeal included the chief judge of the district court for the Northern Mariana Islands. Judges serving on that territorial court are Article IV judges who serve only a 10-year term. The opposing parties before the Supreme Court agreed that the 9th Circuit had erred in allowing an Article IV judge to hear and decide cases, sitting by designation with the 9th Circuit, and by a vote of 5-4, the Supreme Court held that the panel’s unlawful composition required that the 9th Circuit’s unanimous affirmance be vacated and the case remanded for consideration before a properly constituted three-judge 9th Circuit panel. Because recess appointees to the federal judiciary lack life tenure, it seems clear that they do not satisfy the U.S. Constitution’s definition of Article III judges. Whether the U.S. Supreme Court would nevertheless allow recess appointees to exercise the Article III federal judicial power remains to be seen, but the Supreme Court’s recent decision in Nguyen suggests that the court may be willing to resolve the question soon. And now for some federal judicial recess appointment trivia. Congress created the current U.S. courts of appeals in 1891, and since that time, there has been only one recess appointee to a U.S. court of appeals who failed to receive Senate confirmation. He was Wallace McCamant, who served on the 9th Circuit from May 25, 1925, through May 2, 1926, following a recess appointment from President Coolidge. Thus, if Pickering and Pryor fail to achieve confirmation to a lifetime post on their respective U.S. courts of appeals, they will join the “Wallace McCamant club.” On the other hand, if Pickering and Pryor fail to receive Senate confirmation before their recess appointments expire, they could still continue to serve as federal appellate judges if the White House uses successive recess appointments to return them to their respective courts. The Federalist Society recently published a paper titled “Judicial Recess Appointments: A Survey of the Arguments.” That paper contains a chart listing all recess appointees to the Article III federal courts. Looking back in history, at least three federal district judges — William J. Tilson of the U.S. District Court for the Middle District of Georgia, Milton D. Purdy of the U.S. District Court for the District of Minnesota, and Oscar R. Hundley of the U.S. District Court for the Northern District of Alabama – received back-to-back recess appointments before leaving the federal judiciary. Presumably, Bush could keep Pickering and Pryor on the bench for several more years through successive recess appointments, assuming the president’s re-election this fall. Of course, the possibility of successive recess appointments to the federal judiciary highlights one of the main reasons the practice is objectionable. Unlike life-tenured Article III judges who are insulated from political pressure, recess appointees who desire life tenure need to stay in the good graces of the Senate, and recess appointees who desire a successive recess appointment need to stay in the good graces of the White House. For these reasons, I hope that the question whether recess appointments to Article III federal courts are constitutional will soon go before the U.S. Supreme Court and that the court will agree to resolve the question on the merits. Until then, we shall see whether the Wallace McCamant club gains any new members and whether the White House will choose to give successive recess appointments to any of its judicial recess appointees. HOWARD J. BASHMAN recently opened an appellate boutique and is co-chiarman of the Philadelphia Bar Association’s appellate courts committee. He can be reached at 267-419-1230 and at [email protected]. You can access his appellate Web log at http://appellateblog.blogspot.com.

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