By Ryan Woo

In the wake of the unjustifiable Senate filibuster of the nomination of Caitlin Halligan to the U.S. Court of Appeals for the D.C. Circuit last week, we are now quickly approaching the end of 2011 with no end to the judicial vacancy crisis in sight. With the number of judicial vacancies at 80 (the 899th straight day of 80 or more vacancies), and 20 qualified and largely uncontroversial nominees stalled on the Senate floor, it is an ideal time to revisit an idea CAC floated more than a year ago: the possibility of judicial recess appointments.  If the Senate does recess this year (which is far from certain, given that partisan conflict over nominations has precluded recess appointments by keeping the Senate in at least pro-forma session for all of 2011), recess appointments could potentially allow President Obama to protect the federal judiciary from partisan obstruction, particularly for vacancies that have been declared judicial emergencies. CAC first mentioned this proposal in an October 2010 article in Slate, and Fourth Circuit Judge Diana Gribbon Motz’s essay in the November 2011 Virginia Law Review provides background and qualified support for the idea.

In her essay, Judge Motz addresses two key objections to recess appointments of Article III judges: constitutionality and advisability. While Judge Motz acknowledges that the text of the Recess Appointments Clause in Article II and the text of Article III, which lays out the terms of judicial service, are silent on the specific topic of judicial recess appointments, she argues that historical and judicial precedent provide a strong constitutional basis for such appointments. Judge Motz begins by showing that the tradition of judicial recess appointments is deeply rooted in American history.  From 1794 to 2000, all but six presidents made at least one recess appointment to an Article III court. Of the more than 300 judges placed on the bench through recess appointments in this period, only 34 failed to be subsequently confirmed by the Senate. In the two instances when the constitutionality of a recess appointment has been challenged, the federal Court of Appeals considering the issue easily found the appointment to be within constitutional bounds. In 1955, the Second Circuit ruled that:

[I]t cannot be said that judicial offices must remain vacant despite the existence of the recess power, because judges who might be appointed do not have life tenure… [The] hypothetical risk of [executive and legislative coercion] must be weighed against the danger of setting up a roadblock in the orderly functioning of the government which would result if the President’s recess power were limited…

Nearly thirty years later, the Ninth Circuit considered the same issue and found that “there is an unbroken acceptance of the President’s use of the recess [appointment] power…by the three branches of government.”

After clearly demonstrating the constitutionality of judicial recess appointments, Judge Motz proceeds to assess the advisability of recess appointments by examining the judges who were appointed through the process. Here she finds no shortage of qualified and effective judges who have had no trouble maintaining their judicial independence despite their initial recess appointment.

While the Senate’s recent filibuster of Richard Corday’s nomination to be the Director of the Consumer Financial Protection Bureau has led to renewed calls for recess appointments for various executive branch positions, Judge Motz’s essay provides compelling reasons for the White House to consider the use of this constitutional authority to address the judicial vacancy crisis that has long plagued the judicial branch. With a large number of uncontroversial nominees languishing in the Senate and an alarming number of judicial emergencies cutting off effective access to the courts, this idea, and Judge Motz’s article, should be taken seriously by President Obama if the Senate gives him the chance to act.