President Bush’s recess appointment of William Pryor to the Court of Appeals for the Eleventh Circuit has kindled fervent debate on the nomination process. But the partisans in those debates all seem to have assumed that the appointment is legal. That assumption may be wrong. And if it is, every judicial act that Judge Pryor takes may be invalid, creating havoc for the courts, the litigants, and the taxpayers footing the bill.

Under the Constitution, the president appoints federal judges and senior officers of the Executive Branch, subject to the advice and consent of the Senate. But the Constitution allows the president to bypass Senate confirmation “to fill up Vacancies that may happen during the Recess of the Senate.” Such a recess appointment expires at the end of the next session of Congress.

This exception to the requirement of Senate confirmation served an important purpose when the Constitution was adopted. Travel and communications were slow. Congressional sessions, if not few, were far between. The recesses between sessions for the first 10 Congresses averaged seven months. The president had to keep the government running while the Senate was not available to confirm appointments.

Whether the clause applies to judges at all, or just to executive branch officials, is not entirely clear. On the one hand, it refers to “all Vacancies” during the recess. On the other hand, Article III of the Constitution, which deals with judges, provides that they shall hold their offices “during good Behaviour,” in other words, for life. The purpose of life tenure is to insulate judges from political pressure. By contrast, a recess appointee, whose term expires at the end of the next session of Congress, whose nomination remains before the Senate, is a magnet for political pressure. Granted, there is historical precedent for recess appointments of judges. But that does not mean such appointments are wise, or even constitutional. As late as 1985, the Court of Appeals for the Ninth Circuit, upholding such a recess appointment, split 6-4 on the issue, and the Supreme Court has never ruled.

Even if the Recess Appointments Clause applies to judges, this appointment is still legally doubtful. The Department of Justice, which protects and oversees Presidential prerogatives, has historically provided guidance on the scope of this appointment power. That guidance suggests that the appointment of Judge Pryor is not proper. In 1921, Attorney General Harry Daugherty issued a formal opinion holding for the first time that the president could make recess appointments during recesses not only between sessions of Congress, but also within a session. He found, however, that this authority was not unlimited. Given the purpose of the Recess Appointments Clause, the attorney general stated, the recess had to be sufficiently long so that the Senate could “not receive communications from the president or participate as a body in making appointments.” While the attorney general did not draw precise boundaries, he found that in the case before him, 28 days was long enough. He warned, however, that “an adjournment for 5 or even 10 days” did not “constitute the recess intended by the Constitution.”

Presidents since 1921 have made many recess appointments during Congressional sessions, and the Department of Justice has not wavered from the position that it took then. To be sure, the Department has found that the president must have some discretion to determine in good faith whether the circumstances justify a recess appointment. In written opinions, the Office of Legal Counsel in the Justice Department has blessed appointments made during recesses as short as 15 and 18 days. But it also stated during the Reagan Administration that the recess had to be of “substantial length.” And in 1982, Theodore Olson, then head of the Office of Legal Counsel, observed that his Office had “generally advised that the President not make recess appointments, if possible, when the break in continuity of the Senate is very brief.” Indeed, as recently as 1992, under the first President Bush, the Department was still citing Attorney General Daugherty’s opinion that 10 days was too short a recess to justify bypassing Senate confirmation.

In this case, the Senate adjourned on February 12, 2004. It reconvened on February 23, 2004. Thus, the recess was 10 days. Because this period included four weekend days and the President’s Day Holiday, the Senate’s “recess” covered just five business days. It is hard to argue that the Senate was unable to “receive communications from the President or participate as a body in making appointments.”

The ultimate point here is not whether the difference between 10 days or 18 should have constitutional significance. Indeed, the historical record may well yield scattered examples of appointments during recesses of even shorter duration. But in the context of a judicial appointment, pushing the limits of constitutional power, as the president has done here, raises immediate practical problems.

Under the Constitution and federal statutes, only properly appointed federal judges can decide cases before federal appellate courts. Neither the president nor Congress could deputize a state court judge or a private citizen to hear appeals on a three-judge panel. Decisions by such panels would be invalid, and not just the ones decided 2-1 – but all of them. Just last summer, the Supreme Court reversed a decision of the Ninth Circuit because one of the members of the three judge panel was a territorial judge from the Mariana Islands, not a judge appointed by the president and confirmed by the Senate for life under Article III. The Supreme Court held the panel’s decision invalid, even though the decision was unanimous and no one had objected to the participation of the territorial judge.

Thus, every time Judge Pryor hears a case, he will create a legal risk. Whether anyone challenges his participation or not, the other judges on the Court will have to decide whether he can sit. If they find he cannot, then this appointment was a waste of time. If they find he can participate, then the losing party ultimately may argue to the Supreme Court that Judge Pryor’s involvement tainted the outcome. In the meantime, Judge Pryor will have heard many other appeals, sowing doubts whether those decisions can stand. Certainty and finality, cardinal goals of the federal judicial system, will suffer.

The litigation that this appointment is likely to generate will impose burdens on the courts and litigants. If the appointment were ultimately struck down, the result would be a legal morass. Moreover, the abuse of the recess appointment power here could ultimately diminish the prerogatives of the presidency. Senate Minority Leader Tom Daschle has already served notice that it is an open issue “whether or not we ever vote to recess again,” noting that “We don’t have to recess when we depart the Congress.”

No doubt, the president is frustrated that senators are using the filibuster to block some of his nominees. But that does not justify this use of the recess appointment process. Whatever the provocation, for the president to take such a legal risk – or more aptly, to inflict that risk on others – is not a responsible use of this presidential authority.

Robert N. Weiner is the head of the litigation practice group at the Washington, D.c= law firm of Arnold & Porter and is a past president of the District of Columbia Bar. He handled legal issues regarding the president’s appointment powers while serving in the White House Counsel’s Office from 1997-98.

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