RECESS APPOINTMENTS.

In response to Hugh Hewitt's suggestion (see my comments here) that Bush should use recess appointments to circumvent the Senate Dems (and to up the stakes in the nominations battle), Howard Bashman points to his 2001 article arguing that recess appointments to the federal judiciary are unconstitutional. The main argument is that judges who are recess appointments do not have the requisite independence, by virtue of their impeding re-nomination and confirmation process, to act as good Article III judges. The article notes that Presidents have made 310 recess appointees to the judiciary (11 to the Supreme Court), and the major recent case on recess appointments (U.S. v. Woodley, 751 F.2d 1008, on a challenge to Walter Heen's appointment) notes that Kennedy and Eisenhower made 53. According to Bashman (and the dissenters in Woodley), however, historical practice does not outweigh the constitutional principle of separation of powers and the need for judicial independence. The recess appointment power from Article II loses to the judicial independence mandated by Article III.

I haven't studied the issue in depth, so take my comments for what they're worth. Since I am not a judicial actor, I would be inclined to at least entertain an alternate line of analysis, one that focuses less on the needs of the judiciary and more on the reasons for executive power. One important aspect of executive power is the ability to respond to crises quickly and decisively. The recess appointment power seems designed to give the President the ability to respond to a staffing crisis when Congress is not in session.

Whether or not a crisis in judicial staffing because of partisan stubbornness is enough of a crisis to justify recess appointments is a tough question. As I've said before, I'm suspicious of the rhetoric of crisis at least insofar as it comes from the mouths of Republicans who have bigger fish to fry than the question of judicial caseloads. The issue of whether or not there really is a crisis in the judicial nominations process is one that has serious implications for the political system as a whole. Eagle Forum-type folks would see a crisis if Dems were able to put lots of their picks on the courts; they think that courts shouldn't be doing a lot of things that they are doing right now. Bush is certainly playing to that audience, as are many of the Senators railing about Democratic obstructionism. But judicial actors also argue that there is a staffing crisis, and they are not (always) pursuing partisan goals in doing so.

So, ultimately I'm undecided on the issue. I doubt that the judiciary would be or should be deferential regarding executive determinations of whether or not there is a crisis in the judiciary itself; presumably they would know more about that than the president, at least with respect to caseload management issues. I would want to know more about actual presidential defenses of the recess appointment power, however. My intuition is that the President can rely upon an explicit textual provision and on historical practice in exercising the power, and that the use of the power requires judgment that should be subject to political checks rather than to judicial policing of the separation of powers. I'm willing to revise that view after further thought, however.