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They look like Article III judges. They hear cases like Article III judges. But does our Constitution allow Charles Pickering Sr., who received a recess appointment to the 5th Circuit in January, and William Pryor Jr., who was given a recess appointment to the 11th Circuit in February, to decide cases like true Article III judges? Not if we still consider an independent judiciary a core constitutional value. The legitimacy of these two recess appointments by President George W. Bush has been repeatedly questioned by angry Democratic senators — so far without success. On May 19, the Sierra Club challenged Pryor’s right to sit on Sierra Club and Georgia Forestwatch v. Leavitt. That motion is pending. THE KEY PROVISIONS What the 11th Circuit should note is that the Constitution is quite specific about the third branch. Article III provides that those who exercise “the judicial Power of the United States” must have life tenure, and Article II requires that they be confirmed by the Senate. By contrast, Article II, Section 2, which allows the president to make recess appointments, refers only generally to “vacancies.” Specific provisions are usually considered to override general provisions if there is a serious discrepancy between them. And there is certainly a serious discrepancy here: As recess appointees, Pickering and Pryor have not won Senate confirmation, and their appointments expire within a year or two. Equally important, the recess clause was written to address problems that don’t exist anymore. In 1787, travel was hard and slow, Congress did not convene until March, and then it met for just a few months. The Framers recognized that gaps in public offices would need to be filled to keep the government going during congressional down periods. That need simply doesn’t exist anymore: Congress, including the Senate, is now in almost continuous session. And in the specific cases of the 5th and 11th circuits, no gaps had to be filled quickly. The president didn’t even claim that the circuits were overburdened. In its motion to disqualify Pryor, the Sierra Club raises a third argument — that the recess clause was not intended to apply to brief adjournments like the Presidents’ Day break, the weeklong interval during which Pryor was appointed. The clause was meant to apply only to the months-long periods between sessions of Congress, the Sierra Club argues. Otherwise, the delicate scheme of joint presidential/Senate appointment of judges could be easily evaded by the president. The Framers had just fought a revolution against excessive executive power. In the Declaration of Independence, George III was charged with having “made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.” The Framers could hardly have intended to allow that to continue. Yet President Bush’s recess appointments of Pickering and Pryor do precisely that. ‘AN INDISPENSIBLE INGREDIENT’ The obvious goal of Article III is to ensure that judges will be independent. In Federalist No. 78, Alexander Hamilton referred to “permanence in office” as vital to “firmness and independency” by judges and called life tenure “an indispensable ingredient.” He warned that “periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence.” A judge with life tenure need not worry how his opinions will be received. Pickering and Pryor, however, have to be renominated by the president and confirmed by the Senate if they want to stay on the bench. And Pryor at least told the Associated Press in May, “I would love to have an opportunity to do this for the rest of my life.” Can anyone in the position of Pickering and Pryor help wondering how the president and others in the reappointment process will view his rulings? Even if a judge is truly indifferent to such considerations, his objectivity will be suspect. A losing litigant cannot help asking whether a judge with a merely temporary seat was influenced by his awareness that if he seeks to be renominated for a full term, every vote he casts will be scrutinized and considered by partisan politicians. Intense scrutiny of a judge’s voting record is especially likely in politically sensitive cases like those involving national security, the environment, abortion, or the death penalty. In many of these, the government will be a party, and in others, the president may have a strong political interest. No litigant in such a case can feel easy facing a judge whose future depends on the litigant’s opponent. HISTORY CHANGES Historically, we have indeed had many judicial recess appointments — some 300 — but very few were controversial, and the practice largely ended 40 years ago. President Lyndon Johnson named four recess appointees in 1964, his first year in office. Since then, apart from Pickering and Pryor, there have been just two. In December 1980, President Jimmy Carter made one recess appointment, naming Walter Heen to the U.S. District Court in Hawaii. That appointment was upheld by the 9th Circuit’s 7-4 en banc decision in United States v. Woodley (1985). In December 2000, President Bill Clinton named the first African-American, Roger Gregory, to the 4th Circuit. Note the unusual timing: Both appointments were made by lame-duck presidents. President Ronald Reagan did not reappoint Heen. Gregory, supported by both home-state Republican senators, was promptly renominated by Bush and confirmed. In any case, history does not decide the question. The Supreme Court has made it clear that past practice will be ignored where it violates what the Court has come to recognize as basic constitutional principles. Brown v. Board of Education (1954) is the best example. In Immigration and Naturalization Service v. Chadha (1983), the Court invalidated the legislative veto even though it had been used over 200 times. And there is last month’s decision in the sentencing guidelines case of Blakely v. Washington. As for the federal courts, they have undergone a dramatic and highly relevant change over the last half-century. Their caseload used to consist largely of private disputes that were heard in federal court because the opposing parties hailed from different states. That is, they were mainly suits in which the president could be presumed to have no particular interest. Today, however, public disputes in which the government has a deep interest, and which are often politically sensitive, dominate federal dockets. The Supreme Court is a good example. In the 1854-55 term, two-thirds of its cases addressed issues of trusts and estates, admiralty, real property, contracts, and commercial law. Today the number of private legal disputes before the Court is negligible. In these vastly different circumstances, past practice can be no guide. INDEPENDENT FOR LIFE At the same time, the Court also seems to be moving toward the position that only judges with life tenure can exercise “the judicial Power.” In 1982, the Court in Northern Pipeline Construction Co. v. Marathon Pipeline Co. denied bankruptcy judges, who are presidentially appointed and Senate-confirmed but serve 14-year terms, the authority to adjudicate a state law contract claim. Last year, the Court in Nguyen v. United States overturned a decision because a territorial judge had sat on the case. Like bankruptcy judges, territorial judges are appointed by the president and confirmed by the Senate, but they serve only 10-year terms. Recess appointments of judges also raise separation-of-powers problems by undercutting the Senate’s advice-and-consent role. The Framers could hardly have intended to let the president do an end run around the Senate for judicial officers, who, unlike other recess appointees, are not the president’s subordinates but must be independent of the other two branches. Judicial independence has come under attack from politicians and private groups. Calls for impeachment of judges are again being heard in the House, and a controversial measure to curb judicial independence in sentencing has already been passed. We cannot further risk what has been called the “paramount value” of our federal court system by letting judges decide the rights and liberties of litigants while also worrying how their decisions will play with politicians. Herman Schwartz is a professor at American University Washington College of Law. His latest book, Right Wing Justice: The Conservative Campaign to Take Over the Courts , has just been published by Nation Books.

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