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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: JGR/Recess Appointments (10)
Box: 47
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123 Box 47 - JGR/Recess Appointments (10) - Roberts, John G.:
Files SERIES I: Subject File
751 F.2d. 1008 (1985)
1008
751 FEDERAL REPORTER, 2d SERIES
tionally preside over criminal trial. U.S.
UNITED STATES of America,
C.A. Const. Art. 2, § 2, cl. 3.
Plaintiff-Appellee,
3. Judges -3
V.
More specific language of Article III
Janet WOODLEY, Defendant-Appellant.
does not govern the language of recess
No. 82-1028.
appointment clause thereby forbidding in-
terim judicial recess appointments since re-
United States Court of Appeals,
cess appointment clause is equally specific
Ninth Circuit.
in addressing manner of appointment of
Argued and Submitted En Banc
federal judges. U.S.C.A. Const. Art. 2,
Aug. 16, 1984.
§ 2, cl. 3; Art. 3, § 1 et seq.
Decided Jan. 14, 1985.
4. Judges 0-8
Language of recess appointments
clause giving president power to fill all
Defendant was convicted in the United
vacancies that may happen during recess
States District Court for the District of
of Senate does not mean that only those
Hawaii, Walter M. Heen, J., and Martin
vacancies that occur during the recess it-
Pence, Senior District Judge, of narcotics
self can be filled by presidential appoint-
offenses and she appealed. The Court of
ment. U.S.C.A. Const. Art. 2, § 2, cl. 3.
Appeals, Norris, Circuit Judge, 726 F.2d
1328, vacated and remanded. On rehearing
5. Judges -3
en banc, the Court of Appeals, Beezer,
Recess appointment clause allowing
Circuit Judge, held that the president may
for recess appointment of judges is not a
constitutionally confer temporary federal
mere "housekeeping measure" which pre-
judicial commissions during a recess °of
vents those judges from having attributes
Senate; thus, district judge whose commis-
of Article III judges. U.S.C.A. Const. Art.
sion was conferred during recess could con-
2, § 2, cl. 3; Art. 3, § 1 et seq.
stitutionally preside over criminal trial.
6. Judges =7
Remanded.
Recess appointments clause allowing
Norris, Circuit Judge, filed a dissent-
for recess appointment of judges may be
ing opinion in which Fletcher, Ferguson
invoked only when the Senate is in recess
and Reinhardt, Circuit Judges, joined.
and recess commissions expire at the end
of the next congressional term. U.S.C.A.
Const. Art. 2, § 2, cl. 3.
1. Judges -39
Standing alone, withdrawal of nomina-
tion of district judge, whose commission
Pamela Berman, Honolulu, Hawaii, for
has been conferred pursuant to recess ap-
plaintiff-appellee.
pointment clause of the Constitution, did
not impair his authority to sit as a district
Robert Erickson, Dept. of Justice, Wash-
court judge. U.S.C.A. Const. Art. 2, § 2,
ington, D.C., for defendant-appellant.
cl. 3.
Appeal from the United States District
2. Judges -3
Court for the District of Hawaii.
The president may constitutionally con-
fer temporary federal judicial commis-
Before BROWNING, Chief Judge,
sions during a recess of Senate pursuant to
SNEED, SKOPIL, FLETCHER, FARRIS,
recess appointment clause; thus, district
ALARCON, POOLE, FERGUSON, NOR-
judge whose commission was conferred
RIS, REINHARDT, and BEEZER, Circuit
during during Senate recess could constitu-
Judges.
UNITED STATES V. WOODLEY
1009
Cite as 751 F.2d 1008 (1985)
BEEZER, Circuit Judge:
[2] Woodley appealed the denial of her
We take this case en banc to address the
motion to suppress. A panel of this court
constitutionality of a practice followed by
raised the issue sua sponte whether Judge
the Executive for nearly 200 years. The
Heen could constitutionally preside over
question before us is whether the President
Woodley's trial.² The panel held that he
of the United States may constitutionally
could not and it vacated Woodley's convic-
confer temporary federal judicial commis-
tion. United States v. Woodley, 726 F.2d
sions during a recess of the Senate pursu-
1328, 1339 (9th Cir. 1983). The court having
ant to article II, section 2 of the Constitu-
convened en banc, United States v. Wood-
tion.
ley, 732 F.2d 111 (9th Cir.1984) (order
granting rehearing en banc), we hold that
I
the recess appointment clause extends to
[1] On February 28, 1980, Walter Heen
judicial officers and that a recess appointee
was nominated to fill a judicial vacancy in
to the federal bench can exercise the judi-¹
the United States District Court for Ha-
cial power of the United States.
waii. The Senate Judiciary Committee be-
gan confirmation hearings on his nomina-
II
tion on September 25, 1980. When the
Senate recessed on December 16, 1980, tes-
[3] The recess appointment clause pro-
timony and hearings on the nomination
vides that: "The President shall have Pow-
were complete, but the nomination did not
er to fill up all Vacancies that may happen
come before the full Senate for its advice
during the Recess of the Senate, by grant-
and consent. During the Senate's recess,
ing Commissions which shall expire at the
on December 31, 1980, President Carter
End of their next Session." U.S. Const.
conferred a commission on Judge Heen
art. II, § 2, cl. 3. Article III, in turn,
pursuant to the recess appointment clause
provides in relevant part that: "The
of article II of the United States Constitu-
Judges, both of the supreme and inferior
tion. Heen then took his oath and assumed
Courts, shall hold their Offices during good
his duties as district court judge. On Janu-
Behaviour, and shall, at stated Times, re-
ary 21, 1981, Heen's nomination was with-
ceive for their Services a Compensation,
drawn by President Reagan. Heen contin-
which shall not be diminished during their
ued sitting as a district judge pursuant to
Continuance in Office." U.S. Const. art.
his recess commission until December 16,
III, § 1.
1981, when the 97th Congress ended its
First Session.¹
Woodley contends that under generally
accepted principles of statutory construc-
On September 18, 1981, while Heen was
tion, the more specific language of article
sitting out his commission, appellant Janet
III governs over the general language of
Woodley was indicted on three counts of
the recess appointment clause. She con-
narcotics violations. Woodley filed a mo-
cludes therefore that article III forbids in-
tion to suppress evidence, which was de-
terim judicial recess appointments. We re-
nied by Heen. Judge Heen then presided
over a bench trial on stipulated facts and
ject this argument.
found Woodley guilty as charged in the
The United States Supreme Court has
indictment.
unequivocally stated that "[t]he Constitu-
1. Withdrawal of Judge Heen's nomination,
2. Although the recess appointment issue was not
standing alone, did not impair his authority to
raised by the parties, this court must examine
sit as a district court judge. See U.S. Const. art.
jurisdictional problems sua sponte. Miller v.
II, § 2, cl. 3; see also In re Marshalship for the
Transamerican Press, Inc., 709 F.2d 524, 527 n. 2
Southern and Middle Districts of Alabama, 20
(9th Cir.1983). The case at bar presents such a
Fed. 379, 382 (N.D.Ala.18 (recess commission
jurisdictional issue and is subject to our review.
continues until end of next session of Congress).
See, e.g., Glidden Co. V. Zdanok, 370 U.S. 530,
536, 82 S.Ct. 1459, 1465, 8 L.Ed.2d 671 (1962).
1010
751 FEDERAL REPORTER, 2d SERIES
tion
must be regarded as one instru-
judiciary. This argument is not only refut-
ment, all of whose provisions are to be
ed by the express language of the recess
deemed of equal validity." Prout v. Starr,
clause, which, as previously noted, refers
188 U.S. 537, 543, 23 S.Ct. 398, 400, 47
to all vacancies, but it is also refuted by
L.Ed. 584 (1903). Moreover, while article
legislative history, as well as historical
III speaks specifically about the tenure of
practice, consensus, and acquiescence.
federal judges, article II is equally specific
in addressing the manner of their appoint-
Although the recess appointment clause
ment. There is therefore no reason to fa-
was adopted without debate, 2 Farrand,
vor one Article over the other.
Records of the Federal Convention 533,
540 (1911), there is evidence that it was not
The language of the recess appointment
entirely uncontroversial. Edmund Ran-
clause explicitly provides that the President
has the power to fill all vacancies during
dolph, the governor of Virginia, initially
the recess of the Senate. The Federalist
declined to sign the Constitution, in part
papers clarify the meaning of the recess
because the recess provision gave the Exec-
clause, stating that it "is to be considered
utive the power to confer judicial commis-
sions during the recess of the Senate. 3
as supplementary to the [clause] which pre-
cedes" and that the vacancies referred to
Farrand, supra, at 123, 127.
"must be construed to relate to the 'offi-
In 1789, shortly after ratification of the
cers' described in the preceding [clause]."
Constitution, George Washington, who had
The Federalist No. 67, at 455 (A. Hamilton)
served as President of the Constitutional
(J. Cooke ed. 1961). The preceding clause
Convention, exercised his power under the
in question provides in relevant part that
recess provision. During the recess be-
the President "shall nominate, and by and
tween the sessions of the First Congress,
with the Advice and Consent of the Senate
he conferred three recess district judge
shall appoint
Judges of the supreme
commissions. 30 The Writings of George
Court, and all other Officers of the Unit-
Washington, 457-58, 473, 485 n. 75 (J.
ed States
U.S. Const. art. II, § 2, cl.
Fitzpatrick ed. 1939). At the time of these
2 (emphasis added). This language further
appointments, Edmund Randolph and two
underscores that there is no basis upon
contributors to The Federatist, Alexander
which to carve out an exception from the
Hamilton and John Jay, served as members
recess power for federal judges. Particu-
of President Washington's Cabinet. There
larly relevant in this context is Alexander
is no evidence that they doubted the consti-
Hamilton's statement that "[a]s to the
tutionality of the recess appointments.
mode of appointing the judges: This is the
Moreover, the district court judges were
same with that of appointing the officers of
confirmed upon the return of the Senate
the union in general " The Federalist
without objection to their recess appoint-
No. 78, supra, at 522.3
ments. 1 Executive Journal of the Senate
38, 40 (1790). It is further noteworthy that
III
President Washington's recess appoint-
Woodley also argues that there is no
ments of Justice Johnson in 1791 and of
historical evidence that the Framers intend-
Chief Justice Rutledge in 1795 went un-
ed the recess provision to apply to the
challenged.5 One commentator has aptly
3. The United States Supreme Court has noted
4. Randolph, who was Attorney General, was ad-
that "[t]he opinion of [The Federalist] has al-
vised by President Washington of Judge Grif-
ways being considered as of great authority
fin's recess appointment. See 30 Writings of
and the part two of its authors performed in
George Washington, supra, at 472-73. Secretary
framing the constitution, put it very much in
of State Jay, in turn, had the duty to seal all
their power to explain the views with which it
civil commissions. See Marbury v. Madison, 5
was framed." Cohens v. Virginia, 19 U.S. (6
U.S. (1 Cranch.) 87, 98, 2 L.Ed. 60 (1803).
Wheat.) 120, 187, 5 L.Ed. 257 (1821).
5. Although Rutledge was not ultimately con-
firmed, it was not because he was a recess
UNITED STATES V. WOODLEY
1011
Cite as 751 F2d 1008 (1985)
noted that "the most significant historical
1 L.Ed. 535 (1795) and wrote with the ma-
fact is that by the end of 1823, there had
jority in Talbot 2'. Jansen, 3 U.S. (3 Dall.)
been five recess appointments to the Su-
105, 1 L.Ed. 540 (1795). Justice Curtis,
preme Court. During this period, when
who received a recess appointment in 1851,
those who wrote the Constitution were
sat as a judge of the Circuit Court of the
alive and active, not one dissenting voice
United States for the First Circuit and the
was raised against the practice." Note,
Rhode Island District Court, while he was a
Recess Appointments to the Supreme
recess appointee. See Note, supra, at 131
Court-Constitutional But Unwise?, 10
n. 24. Altogether, fifteen recess appoint-
Stan.L.Rev. 124, 132 (1957).
ments have been made to the Supreme
The actions of the three branches of our
Court. Staff of House Comm. on the Judi-
government have consistently confirmed
ciary, 86th Cong., 1st Sess., Recess Ap-
the President's power to make recess ap-
pointments of Federal Judges 40 (Comm.
pointments. The Executive Branch has
Print 1959). Of these, at least four appoin-
made extensive use of the recess power.
tees sat on the Court prior to their confir-
Approximately 300 judicial recess appoint-
mation. Note, supra, at 125. There is no
ments have been made in our nation's his-
evidence that any member of the Supreme
tory.6 Presidents Eisenhower and Kenne-
Court ever objected to this practice on con-
dy alone made fifty-three such appoint-
stitutional grounds.
ments during their Administrations. See
H. Chase, Federal Judges The Appointing
IV
Process 86-88, 114-15 (1972).
Our historical review demonstrates that
The Legislative Branch has consistently
there is an unbroken acceptance of the
confirmed judicial recess appointees with-
President's use of the recess power to ap-
out dissent. Moreover, Congress has
point federal judges by the three branches
passed legislation providing for the salaries
of government. Woodley argues, however,
of recess appointees, without excluding
that the Supreme Court's recent decision in
judges. 5 U.S.C. § 5503; see also S.Res.
INS v. Chadha, 462 U.S. 919, 103 S.Ct.
334, 86th Cong., 2d Sess., 106 Cong.Rec.
2764, 77 L.Ed.2d 317 (1983), teaches that
18,130-45 (1960) (statement of Senator
historical patterns cannot save an unconsti-
Hart) (confirming President's power to
tutional practice.
make judicial recess appointments).
We agree that historical acceptance alone
Finally, we turn to the Judicial Branch.
cannot conclusively establish a practice's
The only direct challenge, prior to the
constitutionality. Yet while we rely only in
present action, to the President's power to
part on historical consensus in upholding
make judicial recess appointments was re-
the President's authority to make judicial
jected by the Second Circuit in United
recess appointments, we cannot ignore his-
States v. Allocco, 305 F.2d 704 (2d Cir.
torical observance. The teachings of Cha-
1962), cert. denied, 371 U.S. 964, 83 S.Ct.
dha are not to the contrary. That case
545, 9 L.Ed.2d 511 (1963). Although the
held that historical acceptance of the legis-
United States Supreme Court has never
lative veto could not prevent it from run-
passed on the issue, numerous Justices
ning afoul of the Constitution. 103 S.Ct. at
have been recess appointees. Chief Justice
2279 n. 13. The legislative veto is, how-
Rutledge sat as a recess appointee for six
ever, a recent practice, barely 50 years old.
months and participated in two decisions.
Its use does not reach back to the days of
He delivered the opinion of the Court in
the Framers, such as the practice at issue.
United States v. Peters, 3 U.S. (3 Dall.) 96,
Moreover, it is an impermissible statutory
appointee, but because of his opposition to the
6. These statistics were compiled from the files
Jay Treaty. See Ex parte Ward, 173 U.S. 452,
of the Office of the Deputy Attorney General at
454 n. 1, 19 S.Ct. 459, 43 L.Ed. 765 (1899).
our request.
1012
751 FEDERAL REPORTER, 2d SERIES
methodology, unsupported by an express
has been inextricably woven into the fabric
constitutional grant of authority. While
of our nation.
the use of the recess clause to make tempo-
rary judicial appointments has been accept-
V
ed by all three branches of government for
[4] Woodley says that a technical argu-
nearly 200 years, the relatively young leg-
ment could be made that the language of
islative veto has been referred to by the
the recess clause giving the President the
United States Supreme Court as "the most
power to fill all vacancies that "may hap-
recent episode in a long tug of war be-
pen during the Recess of the Senate,"
tween the Executive and Legislative
means that only those vacancies that occur
Branches
" Buckley v. Valeo, 424 U.S.
during the recess itself can be filled by
1, 140 n. 176, 96 S.Ct. 612, 692 n. 176, 46
Presidential appointment. She reasons
L.Ed.2d 659 (1976) (per curiam).⁷
therefore that Judge Heen's appointment is
The United States Supreme Court has
invalid, because the vacancy which he filled
did not occur during a recess of the Senate.
made clear that considerable weight is to
Woodley's interpretation conflicts with a
be given to an unbroken practice, which
has prevailed since the inception of our
common sense reading of the word hap-
pen, as well as the construction given to
nation and was acquiesced in by the Fram-
this word by the three branches of our
ers of the Constitution when they were
government.
participating in public affairs. See, e.g.,
United States v. Curtiss-Wright Export
In a vacuum, the use of the word happen
Corp., 299 U.S. 304, 322, 57 S.Ct. 216, 221,
could be interpreted to refer to vacancies
81 L.Ed. 255 (1936); J.W. Hampton, Jr. &
that either "happen to occur" or "happen
Co. v. United States, 276 U.S. 394, 412, 48
to exist" during a recess of the Senate.8
Yet the former interpretation would lead to
S.Ct. 348, 353, 72 L.Ed. 624 (1928); Stuart
the absurd result that all offices vacant on
v. Laird, 5 U.S. (1 Cranch) 185, 191, 2 L.Ed.
the day the Senate recesses would have to
115 (1803). This principle was reaffirmed
remain vacant at least until the Senate
by the Court less than a month after Cha-
reconvenes. Not only judicial positions,
dha. In Marsh v. Chambers, 463 U.S. 783,
but all offices within the purview of article
103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983),
II, § 2, clause 2 would have to remain
Chief Justice Burger, who also authored
vacant. The positions of cabinet members
Chadha, noted that "[i]n light of the unam-
and other high government officials would
biguous and unbroken history of more than
have to remain unfilled until the return of
200 years, there can be no doubt that the
the Senate. If a vacancy occurred on the
practice of opening legislative sessions
last day before the Senate's recess, the
with prayer has become part of the fabric
President would be without power to fill
of our society." Marsh, 103 S.Ct. at 3336.
that vacancy in the ensuing recess. Even
Much in the same way, the use of the
assuming that the Senate was informed of
recess provision to appoint federal judges
the vacancy prior to its recess and the
7. The first legislative veto provision was chal-
lish Dictionary (2d ed. 1789) ("To fall out by
lenged shortly after its passage. See 37 Op. Att'y
chance, to come to pass; to light on by acci-
Gen. 56, 63-64 (1933). Eleven Presidents have
dent"); 1 Webster's Dictionary (1828) ("To come
gone on record challenging the Congressional
by chance," "to come, to befall," "10 light");
veto power as unconstitutional. Chadha, 103
S.Ct. at 2779 n. 13.
Richardson's English Dictionary (1839) ("Any
thing, something, that comes or falls into our
8. English language dictionaries of the Seven-
hold or possession, any thing caught; chance
teenth, Eighteenth and Nineteenth centuries
accident, luck.") It is noteworthy, however,
shed little light on this issue. See, e.g., Cole's
that it is only in modern usage that happen has
Dictionary (1692) (defining "hap" as "to catch or
come to signify merely "to take place or occur."
snatch"); Blount's Dictionary (2d ed. 1719) (de-
Webster's New International Dictionary (2d ed.
fining "happe" as to "match or catch"); Bailey's
1934).
Dictionary (1737) ("to fall out"); Sheridan's Eng-
UNITED STATES V. WOODLEY
1013
Cite as 751 F.2d 1008 (1985)
President submitted a timely nomination,
Congressman Borland) (recognizing power
the Senate would still be faced with the
of president to fill vacancies that occurred
dilemma of either confirming a candidate
during a previous session of the Senate).
of whose qualifications little is known or
Moreover, Congress has provided for pay-
leaving that office vacant until the Senate
ment of recess appointees, such as Heen,
reconvenes. We agree with the Second
whose nominations were pending at the
Circuit that this interpretation "would cre-
time of the Senate's recess. 5 U.S.C.
ate Executive paralysis and do violence to
§ 5503(a)(2). We therefore decline to adopt
the orderly functioning of our complex
Woodley's "happen to occur" argument
government." Allocco, 305 F.2d at 712;
and recognize the President's power to fill
see also Note, supra, at 126 (apparent pur-
all vacancies that exist during a recess of
pose of recess clause "was to assure the
the Senate.
President the capacity for filling vacancies
at any time to keep the Government run-
ning smoothly"). We cannot attribute to
VI
the Framers an intent to create such a
[5] Finally, we address Woodley's relat-
potentially dangerous situation. See South
ed arguments that the recess appointment
Carolina v. United States, 199 U.S. 437,
clause is merely a "housekeeping measure"
449, 26 S.Ct. 110, 111, 50 L.Ed. 261 (1905).
and that Judge Heen lacks the attributes of
We also emphasize that both the courts
an article III judge contrary to the teach-
and the Executive Branch have consistently
ings of Northern Pipeline Construction
construed the recess clause as giving the
Co. v. Marathon Pipe Line Co., 458 U.S.
President the authority to fill all vacancies
50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982).
that exist while the Senate is in recess.
In Marathon, Justice Brennan's plurality
See, e.g., Allocco, 305 F.2d at 712-15 (Presi-
opinion held that Congress may not,
dent may make appointments to all vacan-
cies that exist during a Senate recess); In
through a statute, constitutionally vest the
non-article III adjunct bankruptcy judges
re Farrow, 3 Fed. 112, 116 (N.D.Ga.1880)
with article III powers. Id. at 87, 102 S.Ct.
(President has power to make appoint-
ments "notwithstanding the fact that the
at 2880.9 Yet the present case is not con-
vacancy filled by his appointment first hap-
cerned with an attempt to circumvent arti-
pened when the senate was in session."); 1
cle III by statute, but with the scope of an
Op.Att'y Gen. 631, 633 (1823) ("[W]hether
express constitutional provision. More-
[a vacancy] arose during the session of the
over, the recess appointment clause is not
Senate, or during their recess, it equally
simply a statutory solution to a judicial
requires to be filled."); 2 Op.Att'y Gen.
problem or a mere housekeeping measure.
525, 528 (1832) (President may make recess
The clause prevents the Executive from
appointments 'if there happen to be any
being incapacitated during the recess of the
vacancies during the recess.' "); 19 Op.
Senate. This in turn prevents extended
Att'y Gen. 261, 263 (1889) ("[W]herever
judicial vacancies, which can cause the de-
there is a vacancy there is a power to fill
nial of the important right of access to the
it.") (emphasis in original).
courts. The Framers considered the recess
Both Houses of Congress have apparent-
appointment clause sufficiently important
ly recognized the soundness of this con-
to include it in the Constitution. In the
struction of the recess power. See Nomi-
early days of the Republic, travel time was
nation of Charles Beecher Warren to be
measured in days, not hours, and extended
Attorney General, 67 Cong.Rec. 263-64
congressional recesses were expected. The
(1925) (recognizing President's power to fill
advent of modern jet travel, instant com-
vacancies regardless of when they arose);
munication, and present day prolonged ses-
52 Cong.F 1369-70 (1915) (statement of
sions of Congress do not justify character-
9. Justice Brennan was himself a recess appoin-
tee.
1014
751 FEDERAL REPORTER, 2d SERIES
izing the recess appointment clause merely
The case is remanded to the panel for
as a housekeeping measure.
determination on the merits.
[6] A recess appointee lacks life tenure
and is not protected from salary diminu-
BROWNING, Chief Judge, SNEED,
tion. As a result, such an appointee is in
SKOPIL, FARRIS, ALARCON and
theory subject to greater political pressure
POOLE, Circuit Judges, concurring.
than a judge whose nomination has been
confirmed. Yet our Constitution has be-
NORRIS, Circuit Judge, with whom
stowed upon the Executive the power to
FLETCHER, FERGUSON and REIN-
make interim judicial appointments. This
HARDT, Circuit Judges, join dissenting.
power is not unfettered, however, but is
Article III of the Constitution provides
subject to its own limitations and safe-
that "[t]he judicial Power of the United
guards. It may only be invoked when the
States" shall be exercised by judges whose
Senate is in recess, and recess commissions
independence from the political branches of
expire at the end of the next congressional
government is assured by guarantees of
session. U.S. Const. art. II, § 2, cl. 3; see
life tenure and undiminished compensation.
Staebler v. Carter, 464 F.Supp. 585, 597
Today, our Court carves out an exception
(D.D.C.1979). We must therefore view the
to this explicit and unqualified constitution-
recess appointee not as a danger to the
al command by holding that the judicial
independence of the judiciary, but as the
power of the United States may be exer-
extraordinary exception to the prescrip-
cised by judges who serve at the pleasure
tions of article III. Cf. Marathon, 458
of the President and the Senate. As Pro-
U.S. at 70, 102 S.Ct. at 2871 (certain excep-
fessor Freund aptly commented, every re-
tional powers bestowed upon Congress by
cess appointee sits with "one eye over his
Constitution not subject to prescriptions of
shoulder on Congress." Harvard Law
article III). The judicial recess appointee,
School Record, October 8, 1953, p. 1; col. 5.
who has sworn to uphold the Constitution,
He has no assured tenure beyond the next
fills a void left by those preceding in office,
session of the Senate.
thereby permitting the unbroken orderly
functioning of our judicial system.
I agree with the majority that there is a
It should also be noted that as a practical
direct conflict between the Recess Appoint-
ments Clause of Article II and the tenure
matter, a recess appointee could not be a
and salary provisions of Article III of the
"lion under the throne," subject to the
whims of the President. 28 U.S.C. § 144
Constitution. I also agree with the majori-
(bias or prejudice of a judge). "The evils of
ty that in deciding which clause should
legislative and executive coercion
prevail, we must look beyond the Constitu-
have
no support in our nation's history." Alloc-
tion itself. As the majority observes, the
co, 305 F.2d at 709.
text gives us "no reason to favor one arti-
cle over the other."
VII
Nor do the contemporaneous writings of
the Framers of the Constitution shed much
Even viewing the recess clause as an
light on the issue. The Federalist and
unwise constitutional provision, it is not for
other sources overflow with references to
this court to redraft the Constitution.
the importance of an independent judiciary
Changes in that great document must come
as a corollary of the very centerpiece of the
through constitutional amendment, not
constitutional plan-the separation of pow-
through judicial reform based on policy ar-
ers. But the records of the constitutional
guments. Accordingly, we hold that Judge
era tell us virtually nothing about the Re-
Heen, as a recess appointee to the federal
cess Appointments Clause or how it was to
bench, could exercise the judicial power of
interact with the tenure and salary provi-
the United States.
sions of Article III.
UNITED STATES V. WOODLEY
1015
Cite as 751 F.2d 1008 (1985)
My major point of disagreement with the
obligation not to discuss any of those
majority is its reliance upon the executive's
pending matters. With that qualifica-
practice of making recess judicial appoint-
tion, whether the label communism or
ments as virtually the sole basis for its
any other label, any conspiracy to over-
conclusion that the practice is constitution-
throw the Government of the United
al. In my view, the majority skips what I
States is a conspiracy that I not only
believe should be a crucial step in the con-
would do anything appropriate to aid
stitutional inquiry: evaluating and balanc-
suppressing, but a conspiracy which, of
ing the competing constitutional values at
course, like every American, I abhor.
stake. Because of its uncritical acceptance
Senator McCarthy. Mr. Brennan, I
of the historical practice as determinative
don't want to press you unnecessarily,
of the constitutional issue, the majority
but the question was simple. You have
fails to make any serious comparative anal-
not been confirmed yet as a member. of
ysis of the concerns for governmental effi-
the Supreme Court. There will come be-
ciency underlying the Recess Appointments
fore that Court a number of questions
Clause and the principle of judicial inde-
involving the all-important issue of
pendence underlying the tenure and salary
whether or not communism is merely a
provisions of Article III.
political party or whether it represents a
We need only look to recent history to
conspiracy to overthrow this Govern-
appreciate that there is genuine tension
ment.
between the values underlying the two op-
I believe that the Senators are entitled
posing constitutional provisions. President
to know how you feel about that and you
Eisenhower's recess appointments to the
won't be prejudicing then any cases by
Supreme Court of Chief Justice Earl War-
answering the question.
ren in 1953 and Justice Brennan in 1956
both created controversy about the legiti-
Hearings Before the Senate Committee
macy of recess appointments to that Court.
on the Judiciary on Nomination of Wil-
Senator Joseph McCarthy's public interro-
liam Joseph Brennan, Jr.: 85th Cong., 1st
gation of Justice Brennan while the latter
Sess., 17-18 (1957).
was a sitting Justice of the Court tells its
Even before Justice Brennan's ordeal,
own cautionary tale:
the recess appointment of Chief Justice
Senator McCarthy. You, of course, I
Warren provoked what seems to have been
assume, will agree with me and a num-
the first scholarly comment concerning the
ber of the members of the committee-
constitutionality of such appointments.¹
that communism is not merely a political
The Warren appointment occurred after
way of life, it is a conspiracy designed to
Brown v. Board of Education, 347 U.S.
overthrow the United States Govern-
483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), was
ment.
originally argued to the Supreme Court but
Mr. Brennan. Will you forgive me an
before reargument actually took place. In
embarrassment, Senator. You appreci-
response to the Warren appointment, the
ate that I am a sitting Justice of the
eminent constitutional scholar Professor
Court. There are presently pending be-
Henry M. Hart, Jr. warned that for Warren
fore the Court some cases in which I
to take his seat and decide cases before his
believe will have to be decided the ques-
confirmation by the Senate would "violate
tion what is communism, at least in the
the spirit of the Constitution, and possibly
frame of reference in which those partic-
also its letter." Harvard Law School
ular cases have come before the Court.
Record, October 8, 1953, p. 2, col. 2. Pro-
I know, too, that you appreciate that
fessor Hart noted that Warren's permanent
having taken an oath of office it is my
appointment would be
1. It was not until United States v. Allocco, 305
apparently first presented to an Article III court
F.2d 704 (2d Cir.1962), that the question was
for decision. See Part V infra.
1016
751 FEDERAL REPORTER, 2d SERIES
subject to three future contingencies: (1)
the decision of the President to forward
constitutionality. In my view, such uncriti-
his nomination to the Senate; (2) the
cal acceptance of a practice as a basis for
decision of the President not to withdraw
judging its constitutionality is inconsistent
the nomination before it has been acted
with the judiciary's historic role as the final
upon; and (3) the decision of the Senate
arbiter of the constitutionality of the ac-
to confirm the nomination. The Senate
tions of the political branches of govern-
will be entirely free
to
ment. Marbury v. Madison, 5 U.S. (1
postpone
its
action until near the close of the session
Cranch) 137, 2 L.Ed. 60 (1803). To make
in order to see how the new nominee is
my point that the majority allows practice
going to vote.
to play an exaggerated role in its constitu-
Id. Hart then stated, "I cannot believe
tional analysis, I will employ a four-step
inquiry. First, I will review the text of the
that the Constitution contemplates that any
Federal
Constitution. Second, I will examine the
judge
...
should hold office, and
contemporaneous writings of the Framers
decide cases, with all these strings tied to
him." Id. Recognizing that, as the majori-
as they pertain to the two clauses in ques-
ty here stresses, recess appointments had
tion. Third, I will weigh the competing
values that animate the two clauses. Fi-
been made in the past and that Attorneys
nally, after discussing the role of historical
General had assumed such appointments to
be valid, Hart stressed that "occasional
practice as a factor in constitutional analy-
sis generally, I will consider the specific
practice backed by mere assumption cannot
settle a basic question of constitutional
practice of making recess judicial appoint-
ments as a factor in deciding the constitu-
principle." Id. Looking to "the spirit and
tionality of that practice.
purpose of the Constitution," Hart ob-
served,
I. THE CONSTITUTIONAL TEXT
the impropriety [of recess appointments
The Constitution presents us with two
to the federal judiciary] becomes unmis-
separate and contradictory clauses, one in
takable. On few other points in the Con-
Article II and one in Article III, each clear
stitutional Convention were the framers
and unambiguous on its face. The Recess
in such complete accord as on the neces-
Appointments Clause, Article II, section 2,
sity of protecting judges from every kind
provides:
of extraneous influence upon their deci-
sions.
The President shall have Power to fill
up all Vacancies that may happen during
Id. Hart concluded, a judge
the Recess of the Senate, by granting
cannot possibly have this independence if
Commissions which shall expire at the
his every vote, indeed his every question
End of their next Session.
from the bench, is subject to the possibili-
U.S. Const., art. II, $ 2, cl. 3.
ty of inquiry in later committee hearings
and floor debates to determine his fitness
When read in light of a preceding clause,
to continue in judicial office.
U.S. Const. art. II, § 2, cl. 2, which gives
Id. The majority today all but ignores the
the President the general power to "ap-
point Ambassadors Judges of the su-
careful analysis of constitutional purposes
preme Court, and all other Officers of the
and values that Professor Hart obviously
United States, whose Appointments are not
believed was critical to resolution of the
herein otherwise provided for the lan-
tension between Article III and the Recess
Appointments Clause.
guage of Article II seems to empower the
President to grant recess commissions to
To be sure, the executive's practice of
fill judicial vacancies.
vesting recess appointees with Article III
power has a long and impressive historical
Article III, on the other hand, seems
equally clear that only persons with the
pedigree, but the majority indiscriminately
defers to this practice as dispositive of its
independence secured by life tenure and
protection against diminished compensation
UNITED STATES V. WOODLEY
1017
Cite as 751 F.2d 1008 (1985)
may exercise the judicial power of the Unit-
from its text-to the contemporaneous
ed States. The relevant portion of Article
writings that reflect the thinking of the
III states simply and unconditionally,
Framers. Unfortunately, those sources
The judicial Power of the United
also fail to tell us which of the two compet-
States, shall be vested in one supreme
ing clauses the Framers intended to prevail
Court, and in such inferior Courts as the
over the other.
Congress may from time to time ordain
and establish. The Judges, both of the
supreme and inferior Courts, shall hold
II. THE
their Offices during good Behaviour, and
CONTEMPORANEOUS WRITINGS
shall, at stated Times, receive for their
The contemporaneous writings of the
Services a Compensation, which shall not
Framers are virtually barren of any refer-
be diminished during their Continuance
ences to the Recess Appointments Clause.
in Office.
Although the record contains a few scat-
U.S. Const. art. III, § 1. On its face, this
tered references to the Clause, it was never
language admits of no exception; its com-
explained, debated or discussed in any
mand is that only judges with Article III
meaningful way. See Note, Historical
protections may wield Article III power.
Practice at 1766-73; Note, Recess Ap-
Hence, we face an extraordinary situa-
pointments at 126-130. Other than the
tion: a direct conflict between two provi-
text of Article II, Section 2 itself, all we
sions of the Constitution. No accommoda-
know is that the Clause was proposed just
tion seems possible; one clause must yield
ten days before the end of the Constitution-
to the other. The majority, in holding that
al Convention and was adopted without de-
Judge Heen could serve as an Article III
bate. 2 Farrand, The Records of the Fed-
judge without possessing Article III protec-
eral Convention of 1787 540 (1911); C.
tions, resolves the conflict in favor of the
Rossiter, 1787: The Grand Convention
Recess Appointments Clause. In doing so,
224 (1966).
it necessarily reads into the unambiguous
Even The Federalist, normally a fruitful
language of Article III an exception for
source of information on the thinking of
recess appointees. I recognize, of course,
the Framers, is almost silent on the subject
that the converse is also true: to hold that
of the President's power to make recess
the Recess Appointments Clause does not
appointments. The Federalist, No. 76,
apply to Article III judges would in turn
quotes the Clause itself but fails to men-
mean reading an exception into that clause.
tion the judicial branch of government.³
That, in the last analysis, is the choice I
Although The Federalist, No. 78, does
believe we should make.
state that the "mode of appointing the
Because I agree with the majority that
judges
is the same" as that "fully
the tension between these two contradicto-
discussed in the two last numbers," id. at
ry provisions cannot be resolved solely by
503, "the two last numbers" of The Feder-
reference to the Constitution itself,2 I turn
alist, Nos. 76 and 77, which were con-
next-as we customarily do when the
cerned with the appointment of other feder-
meaning of the Constitution is not clear
al officers, include no reference to the Re-
2. The two law review treatments of the ques-
130 (1957) [hereinafter cited as Note, Recess
tion, both student notes, also agree that the
Appointments].
issue cannot be resolved by reference to the
constitutional text alone. See Note, Recess Ap-
3. The Federalist, No. 67, (A. Hamilton) (Modern
pointments to Article III Courts: The Use of
Library ed. 1937) (Hereinafter, all references to
Historical Practice in Constitutional Interpreta-
The Federalist are to the Modern Library edi-
tion, 84 Colum.L.Rev. 1758, 1766 (1984) [herein-
tion.], refutes the specious argument by anti-fed-
after cited as Note, Historical Practice Note,
eralists that the President would be empowered
Recess Appointments to the Supreme Court-
by the Recess Appointments Clause to make
Constitutional But Unwise?, 10 Stan.L.Rev. 124,
interim appointments to the Senate.
1018
751 FEDERAL REPORTER, 2d SERIES
cess Appointments Clause other than its
[A]s liberty can have nothing to fear
verbatim quotation at the outset of No. 76.
from the judiciary alone, but would have
In contrast to the paucity of comments
everything to fear from its union with
on the Recess Appointments Clause by the
either of the other departments; that as
Framers, the historical record is a cornuco-
all the effects of such a union must en-
pia of references to the principle of life
sue from a dependence of the former on
tenure enshrined in Article III. History
the latter, notwithstanding a nominal and
makes absolutely clear the supreme impor-
apparent separation; that as, from the
tance the Framers attached to an indepen-
natural feebleness of the judiciary, it is
dent judiciary as a vital corollary to the
in continual jeopardy of being overpow-
fundamental concept of the constitutional
ered, awed or influenced by its coordi-
plan, the separation of powers.
nate branches; and that as nothing can
The experience of the Framers with the
contribute so much to its firmness and
colonial judiciary had not been a happy one.
independence as permanency in office,
The signers of the Declaration of Independ-
this quality may therefore be justly re-
ence charged that the King "obstructed the
garded as an indispensable ingredient
Administration of Justice by refusing his
in its constitution, and, in a great
Assent to Laws for establishing Judiciary
measure, as the citadel of the public
Powers. He has made Judges dependent
justice and the public security.
on his Will alone for the tenure of their
The Federalist, No. 78 at 504-05 (emphasis
office and the amount and payment of their
added).
salaries." The Declaration of Independ-
Hamilton also articulated the Framers'
ence para. 11-12 (U.S.1776). The Framers
belief that life tenure was necessary to
recognized that these protections, when
ensure that the judiciary would play its
embodied in the Act of Settlement of 1701,
crucial role as the guardian of individual
had previously freed English judges from
liberty against the power of government:
royal control. To translate their concern
If then, the courts of justice are to be
for judicial independence into practice, the
considered as the bulwarks of a limited
Framers included in Article III the require-
Constitution against legislative encroach-
ment that federal judges have permanent
ments, this consideration will afford a
tenure and undiminishable compensation.
strong argument for the permanent ten-
See Pittman, The Emancipated Judiciary
ure of judicial offices, since nothing will
in America: Its Colonial and Constitu-
contribute so much as this to that inde-
tional History, 37 A.B.A.J. 485, 588 (1951).
pendent spirit in judges which must be
The Framers were determined to ensure
essential to the faithful performance of
that federal judges would not be beholden
so arduous a duty.
to the executive or the legislature but only
The Federalist, No. 78 at 508. Thus, the
to the law and their own consciences.
letter as well as the spirit and guiding
In contrast with the dearth of references
intention of Article III is inconsistent with
to the Recess Appointments Clause, the
the exercise of judicial power by recess
contemporaneous writings overflow with
appointees whose tenure is dependent upon
commentary on the fundamental impor-
both political branches of government.4
tance of permanency in office as the cor-
In sum, the Framers left us an abun-
nerstone of an independent judiciary. Al-
dance of commentary on Article III, but
exander Hamilton, writing as Publius, elo-
only a few scattered general references to
quently expressed the concerns of the
the Recess Appointments Clause. The only
Framers:
explicit reference to the interaction of the
4. The Columbia Note expressed the conclusion
in ensuring judicial independence and thereby
as follows: "In short, the evidence is over-
contributing to the constitutional scheme of sep-
whelming that the framers accorded a central
aration of powers." Note, Historical Practice, at
role to article III's tenure and salary provisions
1767-68.
UNITED STATES V. WOODLEY
1019
Cite as 751 F.2d 1008 (1985)
two provisions is in Edmund Randolph's
convention, he never repeated his original
letter to the Virginia House of Delegates
concern about the Recess Appointments
explaining his reasons for not signing the
Clause, even on the day the Clause was
proposed Constitution transmitted to the
read aloud to the Virginia convention.⁵ In
states by the Constitutional Convention. 3
fact, the Virginia convention did not dis-
Farrand, supra, 123-27.
cuss the Clause at all. 3 Elliott's Debates.
In his letter, Randolph argues that the
As at the other state conventions, the only
Constitution had created an excessively
doubts raised at the Virginia convention
powerful executive, citing as partial evi-
about the independence of the judiciary
dence for this view his belief that the Re-
stemmed from the fact that the Constitu-
cess Appointments Clause gave the Presi-
tion did not prohibit augmentation of judi-
dent the power of conferring judicial com-
cial salaries, not from the Recess Appoint-
missions during the recess of the Senate.
ments Clause. 3 Elliott's Debates 517.
There is no evidence, however, that Ran-
dolph's comments about the Recess Ap-
Other than Randolph's letter, there is no
pointments Clause in this letter represent-
evidence in any of the extant records of the
ed anything other than the temporary posi-
Constitutional Convention or of the various
tion of a volatile political figure whose "gy-
state conventions that the Framers intend-
rations" regarding both the value and
ed the Recess Appointments Clause to ap-
meaning of the Constitution are well
ply to the judiciary. See Farrand, The
known to historians. See, J. Main, The
Records of the Federal Convention of
Anti-Federalists: Critics of the Constitu-
1787 (1911); J. Strayer, The Delegate from
tion, 1781-1788 257 (1961). By the time of
New York (1939) (Constitutional Conven-
Virginia's state convention on the Constitu-
tion Notes of John Lansing, Jr.); Hutson,
tion, Randolph had so far banished his ear-
"John Dickinson at the Federal Constitu-
lier doubts regarding the Constitution that
tional Convention," 40 William and Mary
he had actually become one of its "staunch-
Quarterly 256 (1983); Elliott, The Debates
est supporters." G. Bancroft, History of
in the Several State Conventions on the
the Formation of the Constitution of the
Adoption of the Federal Constitution
United States 316 (1882).
(1907). For all the record shows, the Fram-
Contrary to the impression created by his
ers' attention was never focused on the
letter, Randolph stated at the Virginia con-
conflict. If it did occur to them, it was not
vention that the powers of the President
mentioned in the debates. As one commen-
were in all respects carefully circum-
tator concludes, "The legislative history of
scribed: "He can do no important act with-
article III and of the recèss appointments
out the concurrence of the Senate." 3 J.
clause reveals no specific intent on the part
Elliott, The Debates in the Several State
of the framers regarding how the two pro-
Conventions on the Adoption of the Fed-
visions would interact." Note, Historical
eral Constitution, 201 (1907) (5 vols.)
Practice at 1768.
[hereinafter cited as Elliott's Debates
He attacked the provisions for the appel-
Thus, the contemporaneous writings con-
late jurisdiction of the federal judiciary, but
tain scant mention of the Recess Appoint-
he maintained that judicial independence
ments Clause. They do contain extensive
had been adequately guaranteed. 3 El-
commentary on Article III, but with the
liott's Debates 205. Despite the fact that
isolated exception of Randolph's letter, the
Randolph consistently highlighted the
contemporaneous writings do not address
flaws in the Constitution for the benefit of
the relationship between the two clauses.
his fellow members of the Virginia state
As one scholarly commentary concluded:
5. The Columbia Note acknowledges the limited
standing of the recess appointments clause to
force of Randolph's remarks: "These postcon-
the framers as a group." Note, Historical Prac-
vention changes in position undercut any at-
tice at 1772 n. 79.
tempt to attribute Randolph's initial under-
1020
751 FEDERAL REPORTER, 2d SERIES
Although the legislative history of the
recess appointments clause arguably
ment was provided in Prigg v. Pennsylva-
supports extending the clause to vacan-
nia, 41 U.S. (16 Pet.) 536, 10 L.Ed. 1060
(1842):
cies in the federal judiciary, this evidence
must be balanced against the heavy em-
It will, indeed, probably, be found, when
phasis that article III's legislative history
we look to the character of the constitu-
places on the value of judicial independ-
tion itself, the objects which it seeks to
ence. Taken together, therefore, the leg-
attain, the powers which it confers, the
islative history of the two provisions is
duties which it enjoins, and the rights
equally capable of supporting either of
which it secures, as well as the known
two interpretations: that the recess ap-
historical fact, that many of its provi-
pointments clause was intended as a lim-
sions were matters of compromise of op-
ited exception to article III's tenure and
posing interests and opinions, that no
salary provisions, or that the tenure and
uniform rule of interpretation can be ap-
salary provisions are absolute require-
plied to it, which may not allow, even if it
ments and the recess appointments
does not positively demand, many modifi-
clause was therefore not intended to ex-
cations, in its actual application to partic-
tend to vacancies in the federal judiciary.
ular clauses. And, perhaps, the safest
Note, Historical Practice at 1773.
rule of interpretation, after all, will be
found to be to look to the nature and
III. CONSTITUTIONAL VALUES
objects of the particular powers, duties
A. The role of values in
and rights, with all the lights and aids of
constitutional interpretation
contemporary history; and to give to the
words of each just such operation and
The first step in the inquiry, examination
force, consistent with their legitimate
of the constitutional text, and the second
meaning, as may fairly secure and attain
step, exploration of the contemporaneous
the ends proposed
If, by one mode
writings, leave us with an unresolved con-
of interpretation, the right must become
flict between two provisions of the Consti-
shadowy and unsubstantial, and without
tution and no real indication of how the
any remedial power adequate to the end,
Framers intended the two clauses to inter-
and by another mode, it will attain its
act. Thus, the next step in our analysis-
just end and secure its manifest purpose,
weighing the values that animate the two
it would seem, upon principles of reason-
provisions-becomes a vital part of the in-
ing, absolutely irresistible, that the latter
terpretive process. Only after that step is
ought to prevail.
completed will I turn to the historical prac-
Id. 41 U.S. (16 Pet.) at 610-12.
tice of using the recess appointment power
to fill vacancies in Article III courts. The
Inquiry into fundamental constitutional
majority, in contrast, simply omits the step
values is especially important when two
of weighing the competing values, result-
provisions of the Constitution are in tension
ing in a truncated analysis based almost
with each other. The Court's attempt to
entirely on historical practice.
resolve the conflict between the two reli-
gion clauses of the First Amendment illus-
The Supreme Court has consistently ob-
trates the essential process of weighing
served the principle that in interpreting the
competing constitutional values. The Es-
Constitution, we are to be mindful of the
tablishment Clause and the Free Exercise
concerns that animate its various provi-
Clause are both cast in absolute terms, and
sions. See e.g., Virginia v. Tennessee, 148
either of them, if expanded to a logical
U.S. 503, 519, 13 S.Ct. 728, 734, 37 L.Ed.
extreme, would tend to clash with the oth-
537 (1893); Legal Tender Cases, 79 U.S.
er. Walz v. Tax Commission, 397 U.S.
(12 Wall.) 457, 531, 20 L.Ed. 287 (1870);
664, 668-69, 90 S.Ct. 1409, 1411-12, 25
Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1,
L.Ed.2d 697 (1970). In resolving this ten-
187, 6 L.Ed. 23 (1824). The classic state-
sion, the Supreme Court attempts to strike
UNITED STATES V. WOODLEY
1021
Cite as 751 F.2d 1008 (1985)
a balance between the values implicated by
In Nebraska Press, the Court was con-
the two clauses.⁶ In balancing the Estab-
fronted with a "prior restraint imposed to
lishment Clause and the Free Exercise
protect one vital constitutional guarantee
Clause,
and the explicit command of another that
Both the Court and various commenta-
the freedom to speak and publish shall not
tors have explored the historical back-
be abridged." 427 U.S. at 570, 96 S.Ct. at
ground of the first amendment in order
2808. The Court adopted a balancing ap-
to guide interpretation of the two reli-
proach, determining "as Learned Hand put
gion clauses, but here as elsewhere, "too
it, [whether] 'the gravity of the "evil," dis-
literal [a] quest for the advice of the
counted by its improbability, justifies such
Founding Fathers" is often futile. The
invasion of free speech as is necessary to
historical record is ambiguous, and many
avoid the danger." Id. at 562, 96 S.Ct. at
of today's problems were of course never
2804. Implicitly, Nebraska Court resolves
envisioned by any of the Framers. Un-
the tension between the First and Sixth
der these circumstances, one can only
Amendments by balancing the values of
examine the human values and histori-
free speech against those of fair press on a
cal purposes underlying the religion
case-by-case basis. The Court concluded
clauses to decide what doctrinal frame-
that the prior restraint was invalid because
work might best realize those values
the state had not met the "heavy burden"
and purposes today.
required to justify a prior restraint; thus,
L. Tribe, American Constitutional Law,
in the particular case, the Court decided the
balance favored the values embodied in the
§ 14-3 (emphasis added).
First Amendment.
Nebraska Press Ass'n v. Stuart, 427
U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683
We cannot adopt such a case-by-case bal-
(1976)-a case involving a conflict between
ancing approach to resolve the tension be-
the fair trial guarantee of the Sixth
tween the Recess Appointments Clause and
Amendment and the free press command of
Article III, because the question whether
the First Amendment-further illustrates
recess appointees may exercise the judicial
how the Court weighs competing values in
power of Article III demands a categorical
interpreting and applying the Constitution.
yes or no answer.⁷ Nevertheless, both
6. In striking the balance, the Court charts a
Constitution. A classic statement of this princi-
course of neutrality that attempts to preserve
ple follows:
the values of autonomy and freedom of reli-
What then, becomes the duty of the court?
gious bodies while avoiding any semblance of
Certainly, we think, so to construe the consti-
established religion. For example, in Tilton v.
tution, as to give effect to both provisions, so
Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29
far as it is possible to reconcile them, and not
L.Ed.2d 790 (1971), the Supreme Court decided
to permit their seeming repugnancy to destroy
whether the Higher Education Facilities Act of
each other. We must endeavor so to construe
1963, authorizing aid to church-related institu-
them, as to preserve the true intent and mean-
tions, violated either the Establishment Clause
ing of the instrument.
or Free Exercise Clause of the First Amend-
Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 393,
ment. The Court framed its inquiry as follows:
5 L.Ed. 257 (1821). As Chief Justice John Mar-
"First, does the Act reflect a secular legislative
shall stated in Marbury v. Madison, "It cannot
purpose? Second, is the primary effect of the
be presumed, that any clause in the constitution
Act to advance or inhibit religion? Third, does
is intended to be without effect; and therefore,
the administration of the Act foster an excessive
such a construction is inadmissible, unless the
government entanglement with religion?
words require it." 5 U.S. (1 Cranch) 137, 174, 2
Fourth, does the implementation of the Act in-
L.Ed. 60 (1803). In the present case, however,
hibit the free exercise of religion?" Id. at 678,
we confront an unavoidable conflict between
91 S.Ct. at 2096. Thus, although the Court did
two provisions of the Constitution. No accom-
not explicitly state its approach, it resolved the
modation is possible; one clause must yield to
conflict by examining the Act in light of the
the other with respect to judicial appointments.
values underlying both constitutional provi-
Of course, construing the Recess Appointments
sions.
Clause not to apply to the judiciary would not
7. I recognize that whenever possible we should
render it meaningless; it would still apply with
strive to reconcile an apparent conflict in the
full force to appointments to executive agencies.
1022
751 FEDERAL REPORTER, 2d SERIES
Walz and Nebraska Press suggest that the
resolution of conflict between two provi-
In my view, the majority simply fails to
sions of the Constitution requires an evalu-
take the institutional protections of Article
ation and balancing of underlying values.
III as seriously as our court did in Pace-
Our next step, therefore, is to evaluate and
maker and the Supreme Court did in Mara-
balance the competing values underlying
thon; indeed, the majority denigrates the
the Recess Appointments Clause and Arti-
tenure and salary provisions when it ar-
cle III.
gues that there are no examples of execu-
B. The competing values animating
tive or legislative coercion of a recess ap-
the two clauses
pointee. This rationale implies that the
We begin the process of weighing the
institutional protections of Article III are
competing values by considering the values
of little consequence because we can rely
that animate Article III. There can be no
on the integrity and courage of individual
doubt that the Framers considered the sala-
judges to assure judicial independence.
ry and tenure protections of Article III to
The Framers, quite obviously, did not share
be critical institutional safeguards of judi-
that view. Rather, they were firm in their
cial independence. Recently, in Pacemak-
conviction that permanency of office and
er Diagnostic Clinic of America v. Instro-
salary protection were crucial institutional
medix, 725 F.2d 537, 541 (9th Cir.1984) (en
safeguards against encroachment on the
banc), our court reaffirmed this fundamen-
judicial power by the political branches.
tal constitutional value: "The attributes of
As our court stated recently, "[O]ur own
Article III judges, permanency in office
experience attests to the substance and re-
and the right to an undiminished compensa-
ality of [Article III's] guarantees. A sepa-
tion, are as essential to the independence of
rate and independent judiciary, and the
the judiciary now as they were when the
guarantees that assure it, are present con-
Constitution was framed." The Supreme
stitutional necessities, not relics of antique
Court stressed the importance of Article
ideas." Pacemaker, 725 F.2d at 541.
III safeguards to judicial independence in
Moreover, we must preserve not only the
Northern Pipeline Co. v. Marathon Pipe
reality but also the appearance of judicial
Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73
independence. Public confidence in the in-
L.Ed.2d 598 (1982):
tegrity and independence of the courts is
In sum, our Constitution unambiguously
imperative, especially when a constitutional
enunciates a fundamental principle-that
confrontation between the judiciary and the
the "judicial Power of the United States"
political branches creates a national crisis.
must be reposed in an independent Judi-
Such confidence could be threatened if, for
ciary. It commands that the independ-
example, recess appointees were called
ence of the Judiciary be jealously guard-
ed, and it provides clear institutional pro-
upon to participate in a highly charged case
tections for that independence.
involving the constitutional limits on presi-
dential power. The facts of Youngstown
Id. at 60, 102 S.Ct. at 2866; see also United
Sheet & Tube Co. v. Sawyer, 343 U.S. 579,
States v. Will, 449 U.S. 200, 217-18, 101
72 S.Ct. 863, 96 L.Ed. 1153 (1952) provide a
S.Ct. 471, 481-82, 66 L.Ed.2d 392 (1980) ("A
thought provoking historical hypothetical.
Judiciary free from control by the Execu-
tive and the Legislature is essential if there
Imagine a recess appointee sitting on a
is a right to have claims decided by judges
Supreme Court that was otherwise divided,
four to four, on the question of the consti-
who are free from potential domination by
tutionality of President Truman's steel mill
other branches of government.").
seizure. Imagine further that this hypo-
8. There is extensive scholarly commentary on
the relationship between judicial independence
Some Aspects of Separation of Powers, 76 Co-
and the principle of separation of powers. See
lum.L.Rev. 371 (1976); Note, Federal Magis-
generally G. Wood, The Creation of the Ameri-
trates and the Principles of Article III, 97 Harv.L.
can Republic, 1776-1787, 453-63 (1969); Levi,
Rev. 1947, 1949 (1984).
UNITED STATES V. WOODLEY
1023
Cite as 751 F.2d 1008 (1985)
thetical justice is courageous and intends to
October 6, 1961, with interim appoint-
vote his conscience. Were he to believe the
ments SO they could begin work on the
President's action in seizing the mills was
overloaded backlog of cases. But their
unconstitutional, the recess appointee
appointments would not become final un-
would confront the possibility that an infu-
til after confirmation hearings by the
riated President might withdraw his nomi-
Senate Judiciary Committee and approval
nation. If, on the other hand, the justice
by the Senate the following March. At
were to believe the seizure was constitu-
an initial meeting with [Chief Judge El-
tional, he would find it difficult if not im-
bert] Tuttle, Bell suggested that the sen-
possible to avoid the appearance that his tie
sitivity of race cases was such that they
breaking vote had been influenced by the
might create problems for Gewin at the
President's power to cut short his tenure
confirmation hearings.
on the Court. United States v. Nixon, 418
Tuttle agreed and said he would not
U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039
assign such cases to Gewin until after
(1974) is another case from our recent past
confirmation and for the same reason
in which public faith in the independence of
would also withhold such assignments
the judiciary could have been shaken if a
from Bell.
recess Supreme Court appointee had pro-
vided a swing vote. These historical hypo-
J. Bass, Unlikely Heroes 164 (1981). The
theticals graphically illustrate the impor-
difficulty with such judicial accommodation
tance of the tenure and salary provisions of
to political pressure is that it requires the
Article III as safeguards against institu-
assignment process itself to depart from
strict neutrality and enter the realm of
tional destabilization.
political machination. Yet, a fundamental
Fortunately, we have not had to confront
purpose of Article III was to isolate the
these disturbing scenarios, because circum-
judiciary from just such political entangle-
stances have not yet combined to produce a
ments.
recess appointment to our highest court
during such trying times of national crisis.
The strain on judicial independence and
There are, however, no guarantees against
the threat to the appearance of independ-
such an occurrence. Entrusting the deci-
ence exemplified by the Fifth Circuit's ex-
sion in such cases-where the constitution-
perience during the struggle for civil rights
al limits of presidential power are on the
and the confrontation of Justice Brennan
line-to judges whose office depends on
by Senator McCarthy are but two examples
whether the President decides to withdraw
of the potentially pernicious effects of de-
their nomination, would threaten seriously
parting from the Article III mandate that
the ideal of separation of powers. Yet, if
judicial power be exercised only by judges
the majority's approach prevails, it may
with permanent tenure and protection
take a crisis of the magnitude of Youngs-
against diminution of salary. We have no
town or United States v. Nixon to cause
way of knowing how many other recess
us to regret today's decision.
appointees may have been shunted away
The threat of institutional destabilization
from controversial cases because they were
posed by recess appointments is not purely
vulnerable to political retaliation for unpop-
hypothetical. History informs us that dur-
ular decisions. Nor do we have any way of
ing the civil rights struggle of the 1960's,
knowing if a judge privately succumbs to
political pressures induced recess appoin-
intense pressure and decides a case in a
tees to avoid politically sensitive cases. A
manner that ensures his confirmation rath-
writer of contemporary history has re-
er than according to the dictates of legal
counted some of the events of that turbu-
principle and precedent. What we do know
is that the constitutional plan of separation
lent period:
[Griffin] Bell and [Walter] Gewin both
of powers rests on clear institutional pro-
began service on the Fifth Circuit on
tections for judicial independence.
1024
751 FEDERAL REPORTER, 2d SERIES
The concerns for efficiency, convenience,
tive from being incapacitated during the
and expediency that underlie the Recess
recess of the Senate"; it does not, how-
Appointments Clause pale in comparison.
ever, cite a single instance when use of the
The purpose served by the President's pow-
er to fill judicial vacancies during a recess
recess appointment power was necessary to
achieve those objectives. Indeed, the ma-
of the Senate is obviously to avoid delay in
the administration of justice in federal
jority presents no evidence that any Presi-
courts. I recognize that such a recess com-
dent made a recess appointment to ensure
mission allows a new judge to begin work-
the continued functioning of the judiciary
ing immediately on a backlog of cases rath-
through a crisis that could not have been
er than waiting for the Senate to recon-
handled by existing Article III judges,
vene. There are ways, however, of coping
With one exception, the federal courts have
with pressing caseloads without compro-
functioned since 1964 without the assist-
mising the principle of judicial independ-
ance of recess appointees. The sole excep-
ence. Because district and circuit judges
tion is Judge Heen.
are largely interchangeable, interdistrict or
Thus, could we set historical practice
intercircuit assignments provide an expedi-
aside, I believe our decision today would be
ent and effective way of dealing with a
relatively easy. Given that the language
short term problem. Such transfers are a
of the two clauses is in conflict and that the
common practice in the federal judicial sys-
intentions of the Framers are unclear, the
tem.
principles that animate the salary and ten-
When it comes to the Supreme Court,
ure provisions of Article III-judicial inde-
different considerations might come into
pendence and separation of powers-clear-
play. In the event of a freak accident-for
ly outweigh the concerns of expediency and
example, the deaths of enough Supreme
efficiency that underlie the Recess Appoint-
Court Justices to void a quorum-use of
ments Clause. In other words, if we were
the executive's recess appointment power
writing on a clean slate, if we were review-
could be one way to deal with an emergen-
ing Judge Heen's recess commission with-
cy. Congress, however, has the authority
out history to support it, I find it inconceiv-
to provide for such exigencies in ways that
able that we would interpret the Constitu-
do not compromise judicial independence.
tion as the majority does today-subordi-
When, for example, the Supreme Court is
nating Article III values to the executive's
unable to muster a quorum to hear a direct
general power to make recess appoint-
appeal from a district court, it is directed
ments. With that thought in mind, I turn
by statute to remand a case for decision by
to the role of historical practice in the
a special panel of the circuit that includes
constitutional equation.
the district from which the appeal was tak-
en. 28 U.S.C. § 2109 (1982); see also Unit-
ed States v. Aluminium Co. of America,
IV. HISTORICAL PRACTICE
148 F.2d 416, 421 (2d Cir.1945) (example of
The fourth step of the inquiry-factoring
such a special panel). Moreover, in the
the historical practice of recess judicial ap-
unlikely event of a true emergency de-
pointments into the constitutional analy-
manding immediate action when the Su-
sis-brings into sharp relief the majority's
preme Court lacks a quorum, the Senate
almost exclusive reliance on a unilateral
can reconvene in a matter of days, if not
practice of the executive as the justification
hours to perform its constitutional role-
for finding the practice to be constitutional.
giving "advice and consent" to the execu-
A. The judicial role: Evaluation of
tive's judicial nominations.
historical practice
The majority asserts that the Recess Ap-
In two recent cases, Immigration and
pointments Clause is necessary to avoid
Naturalization Service v. Chadha, 462
"the denial of the important right of access
U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317
to the courts" and to prevent "the execu-
(1983), and Marsh v. Chambers, 463 U.S.
UNITED STATES V. WOODLEY
1025
Cite as 751 F.2d 1008 (1985)
783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983),
evaluate carefully a historical practice dat-
the Supreme Court developed an analytic
ing back to the Framers before deciding its
framework for evaluating historical prac-
constitutionality.
tice in constitutional interpretation. Cha-
In Marsh, the Court held that the Ne-
dha teaches us that even a long historical
braska legislature's practice of opening
pedigree does not conclusively establish the
each session with a prayer offered by a
constitutionality of a practice. Marsh illus-
state-paid chaplain did not violate the Es-
trates that in limited circumstances histori-
tablishment Clause. In reaching that deci-
cal practice may be an accurate guide to
sion, the Court considered the practice of
the intentions of the Framers. The two
cases together establish the principle that
the First Congress, which not only appoint-
the courts must critically evaluate a histori-
ed the first legislative chaplain but also
cal practice before deciding how much
drafted and recommended the Bill of
weight to accord it in the process of inter-
Rights for adoption by the states. The
Court cited to a uniquely full historical
preting the Constitution.
record indicating that the practice was ex-
In Chadha, the Supreme Court resolved
a conflict between historical practice and
tensively considered and approved by the
Framers. Id., 103 S.Ct. at 3335. The bill
the principle of separation of powers, anal-
ogous to the conflict we confront today.
to appoint a legislative chaplain was exten-
At issue was the constitutionality of a stat-
sively debated by the First Congress. In-
ute authorizing one house of Congress to
deed, the bill was opposed by John Jay and
invalidate by resolution a decision of the
John Rutledge on First Amendment
executive branch made pursuant to con-
grounds. The Court in Marsh cited this
gressionally delegated authority. When
unique record of debate and opposition as
the Court decided Chadha, the one-house
evidence that the "subject was considered
veto was a practice of long and continuous
carefully and the action not taken thought-
"
standing. See Chadha, 103 S.Ct. at 2793
lessly
Id. Thus, the teaching of
(White, J., dissenting). Yet, that fact did
Marsh is that historical practice is only to
not deter the Court from declaring the
be given decisive weight if it is "infuse[d]
practice unconstitutional. In fact, Chief
with power" by the considered judg-
Justice Burger noted that "our inquiry is
ment of the Framers following careful de-
sharpened rather than blunted by the fact
bate. Id.
that Congressional veto provisions are ap-
The majority apparently reads Marsh as
pearing with increasing frequency in stat-
authority for according great weight to the
utes which delegate authority to executive
and independent agencies
Chadha,
practice of making recess judicial appoint-
ments because the practice also dates back
103 S.Ct. at 2781. The teaching of Chadha
to the administration of George Wash-
is clear. Historical practice is not irrele-
vant to Constitutional inquiry, but it will
ington. In doing so, the majority overlooks
not
"save
[a
if it is contrary to
the Marsh Court's careful evaluation of the
practice]
the Constitution." Id. 103 S.Ct. at 2781.
context and characteristics of the practice
of appointing legislative chaplains before
Chadha does not, I hasten to add, stand
accepting it as a reliable guide to constitu-
for the proposition that historical practice
tional meaning. Only after stressing that
has no role to play in constitutional inter-
pretation. Indeed, Marsh v. Chambers is
the practice was carefully debated and
authority that a practice with a lineage that
adopted by the First Congress, and that the
can be traced back to the time of the Fram-
First Congress drafted and proposed the
ers may serve as a guide to the Framers'
Bill of Rights, did the Court accord the
understanding of the workings of the Con-
practice substantial weight in interpreting
stitution. But Marsh also illustrates the
the First Amendment. Id. Chadha illus-
proposition that rather than simply accept-
trates the corollary of Marsh: even long-
ing the historical practice, courts should
standing historical practice should receive
1026
751 FEDERAL REPORTER, 2d SERIES
little deference if it sheds no light on the
George Washington with any special in-
intentions of the Framers.
sight into how the Framers intended the
B. Historical practice and the Framers'
recess appointment power of Article II to
intent: No record of considered
interact with the salary and tenure provi-
deliberation
sions of Article III.
Thus our task is to evaluate critically the
There is a ready explanation as to why
historical practice of recess judicial appoint-
the public record does not reflect that Pres-
ments. The majority treats this case as if
ident Washington's recess judicial appoint-
Marsh were controlling rather than Cha-
ments were subject to the same careful
dha. I recognize that the practice we con-
scrutiny as was the appointment of a legis-
sider today is similar to the practice the
lative chaplain by the First Congress. Un-
Court evaluated in Marsh in one important
like the practice approved by the collective
respect: it stretches back to the time of the
action of Congress in Marsh, the use of the
Framers. There is, however, an equally
recess appointment power to confer interim
important difference. President Wash-
judicial commissions involves the unilateral
ington's use of the recess appointment
action of individual Presidents. Although
power to confer interim judicial commis-
Congress may ultimately confirm a recess
sions is not accompanied by a record of
appointee, it has no authority or opportuni-
considered deliberation that gives us mean-
ty to review the President's exercise of his
ingful insight into the intentions of the
recess appointment power because an inter-
Framers.
im commission is simply not subject to Sen-
In this critical respect, a close compari-
ate approval.
son of the case here with Marsh is instruc-
The distinction between the unilateral
tive. In the case at hand, the historical
historical practice of the executive and the
record fails to inform us whether that the
collective actions of the Congress becomes
Framers considered the possibility that re-
important in the process of assessing the
cess appointments could violate Article III.
interpretive weight of the practice. Con-
Indeed, the majority is careful to observe
gress is a deliberative body composed of
that these appointments by President
peers. An action taken by Congress al-
Washington were made without objection
most necessarily is subject to constitutional
or apparent consideration of the potential
challenge and reasoned debate by the mem-
conflict with Article III.9 This blank
bers of that body. A unilateral action by
record stands in sharp contrast with the
the President, in contrast, can be imple-
full record of plenary consideration given
mented without debate or discussion. Al-
by the First Congress to the First Amend-
though the majority is correct in observing
ment implications of appointing a legisla-
that Alexander Hamilton and John Jay
tive chaplain. Thus, the early historical
were members of Washington's first cabi-
practice of recess appointments to the judi-
net, the historical record does not tell us
ciary has not been "infused with power" by
whether Hamilton and Jay had even con-
the considered judgment of the Framers.
sidered the question whether Article III
As Marsh suggests, such a practice is enti-
limited the executive's recess appointment
tled to less deference than a practice that
power to non-judicial offices, or, if they did,
we know was "considered carefully" by the
whether they had occasion to express their
Framers. Marsh, 103 S.Ct. at 3335.
views, whatever they may have been, in the
Moreover, the first legislative chaplain
privacy of a Cabinet meeting or in conver-
was appointed by the very same body-the
sation with the President alone.
First Congress-that proposed the Bill of
What we do know is that Hamilton and
Rights. There is no reason to credit
Jay were faced with different concerns as
9. The Columbia Note agrees: "At no time during
Congress or the courts." Note, Historical Prac-
this early period did opposition to the practice
tice, at 1776.
make its way into the public record, either in
UNITED STATES V. WOODLEY
1027
Cite as 751 F.2d 1008 (1985)
members of Washington's cabinet than
should, and he should answer us, we
they were as architects of the Constitution
should despise him for it. Therefore, we
and authors of The Federalist. Members
must take a man whose opinions are
of a cabinet have political agendas, and the
known" 2 Warren 401.
fact that they may not have spoken out
Address by Associate Justice Rehnquist,
against a recess judicial appointment does
"Presidential Appointments to the Supreme
not necessarily mean that they considered
Court," University of Minnesota College of
it to be constitutional. As members of a
Law (October 19, 1984) (reported in N.Y.
national administration, they very well may
Times, October 20, 1984 § 1, at 1, 9.). As
have been preoccupied with other matters
Justice Rehnquist reports, the changed atti-
deemed more pressing at the time; they
tude that accompanied Chase's new role
were, after all, faced with a wide range of
thwarted Lincoln's intentions:
problems as members of the first adminis-
The ultimate irony in Lincoln's effort to
tration of a new government. Voicing ob-
pack the Court was the Court's first deci-
jection about the constitutionality of recess
judicial commissions may not have been
sion in the so-called Legal Tender Cases,
very high on their political agenda. More-
Hepburn v. Griswold, 8 Wall. 603 [19
over, the realities of getting the job done
L.Ed. 513]. In 1870 the Court held, in an
and accommodating various contending fac-
opinion by Chief Justice Chase, who had
tions do not lend themselves to the same
been named Chief Justice by Lincoln pri-
process of reasoned deliberation and debate
marily for the purpose of upholding the
as did the framing of our fundamental
greenback legislation, that this legisla-
tion was unconstitutional
Chief Jus-
charter or of the Bill of Rights. Finally,
members of either political branch are not
tice Chase's vote in the legal tender
in the same position as sitting Article III
cases is a textbook example of the propo-
judges faced with a decision affecting the
sition that one may look at a legal ques-
interests of real parties engaged in a con-
tion differently as a judge than one did
as a member of the Executive Branch.
crete dispute.
There is no reason to believe that Chase
Recently, Justice Rehnquist cited a clear
thought he was acting unconstitutionally
example of the dramatic change in attitude
when he helped draft and shepherd
toward the meaning of the Constitution
through Congress the greenback legisla-
that can accompany an individual's switch
tion, and it may well be that if Lincoln
in roles from holding office in one of the
had actually posed the question to him
political branches to the judiciary:
before nominating him as Chief Justice,
[I]n the fall of 1864, the constitutionality
he would have agreed that the measures
of the so-called "greenback legislation"
were constitutional. But administrators
which the government had used to fi-
in charge of a program, even if they are
nance the war effort was headed for a
lawyers, simply do not ponder these
Court test, and Lincoln was very much
questions in the depth that judges do,
aware of this fact. He decided to ap-
and Chase's vote in the legal tender
point his Secretary of the Treasury,
cases is proof of this fact.
Salmon P. Chase, who was in many re-
Id. Even if Hamilton and Jay-in their
spects the architect of the greenback leg-
capacity as members of the first Cabinet-
islation, saying to a confidant that "We
had directly confronted the question of the
wish for a Chief Justice who will sustain
constitutionality of recess appointments to
what has been done in regard to emanci-
the judiciary, they would not have faced a
pation and the legal tenders. We cannot
concrete controversy exposed to the light
ask a man what he will do, and if we
and heat of the adversarial process. 10
10. For the same reason, the majority's observa-
quence. The recess appointee has no formal
tion that individual judges did not object to
opportunity and little incentive to consider in
their own recess appointments is of little conse-
1028
751 FEDERAL REPORTER, 2d SERIES
To sum up, Marsh establishes that a
lineage that began with the Framers is a
ture. In such situations, it may be possi-
necessary condition that must be met for a
ble to show that similar exercises of pow-
historical practice to be considered a reli-
er have occurred repeatedly in the past
able guide to the intentions of the Framers.
and have not been challenged or openly
Just as clearly, however, such a lineage is
opposed by the other two branches. A
not a sufficient condition. If the Framers
court may be offered this evidence with
adopted a practice carelessly or without
the argument that historical practice has
attention to a possible constitutional infir-
"settled" the constitutional question at,
mity, then the lineage is entitled to little
issue, regardless of whether the practice
weight in constitutional analysis. Al-
took place early enough in the nation's
though the practice of recess judicial com-
history to be capable of providing evi-
missions does stretch back to the time of
dence of original intent.
the Framers, there is no record that the
Note, Historical Practice, at 1777-78. The
practice was adopted through a process of
Supreme Court's decision in Chadha estab-
reasoned deliberation. After evaluating
lishes that the mere fact that historical
the practice in light of the standards ap-
practice is of long standing does not relieve
plied by the Supreme Court in Marsh and
the judiciary of the responsibility of assess-
Chadha, I cannot escape the conclusion
ing the practice and measuring it against
that the early historical practice is not a
constitutional standards. In the case at
reliable indicator that the Framers intended
hand, two reasons emerge for concluding
the recess appointment power to extend to
that the historical practice of recess judicial
vacancies in Article III courts.
appointments is not entitled to judicial def-
C. Historical practice and structural
erence as evidence of a "structural accom-
accommodation: Judicial silence
modation". First, judicial silence cannot be
and individual liberties
interpreted as acquiescence in the constitu-
tionality of a practice because Article III
Even though the historical practice of
courts cannot react to an encroachment on
recess judicial appointments is not an accu-
their separate powers until presented with
rate guide to the Framers' intentions, it
the issue in a concrete case or controversy.
could still be argued that the judiciary
Second, because Article III's tenure and
should defer to the executive's longstand-
salary provisions are designed as safe-
ing practice on the theory that it consti-
guards of individual as well as institutional
tutes a "structural accommodation" be-
interests, the courts have a duty to prevent
tween the various branches of government.
erosion of those safeguards that tran-
follows: One commentator articulated the theory as
scends the structural importance of an in-
dependent judiciary.
Because the Constitution is a broad char-
ter of government and not a statute, it
1. Inaction by the judiciary cannot
represent acquiescence in a structural ac-
establishes a flexible framework for the
exercise of national power. The legisla-
commodation.-The judiciary's role in our
tive, executive, and judicial branches are
system of checks and balances is a passive
not hermetically sealed units with exact-
one. Because of the case or controversy
ly defined powers, but are interlocking
requirement of Article III, federal courts
spheres of influence, each with a core of
can only act when a dispute is presented to
them by parties with a concrete stake in
constitutionally assigned functions and
the outcome. The courts do not initiate
enumerated powers. Thus, situations
law suits; rather they react to actions filed
arise in which it is charged that one
branch's interpretation of the scope of its
by parties. Even when deciding cases or
authority exceeds the limits imposed by
controversies, "the judicial branch acts pri-
either the constitutional text or struc-
marily on the litigants before the court."
Pacemaker, 725 F.2d at 542.
depth the constitutionality of his own appoint-
ment
UNITED STATES V. WOODLEY
1029
Cite as 751 F.2d 1008 (1985)
In contrast, the political branches, the
299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255
legislature and the executive, are both ac-
(1936), the Court did in part rely on histori-
tive. Both the President and Congress
cal practice in upholding the Congressional
have the power to initiate action to define
delegation to the President of the power to
operationally their role in the constitutional
declare illegal the provision of arms to na-
scheme of separate and divided powers.
tions involved in the Chaco conflict. Id. at
Thus, historical acquiescence of the politi-
327-29, 57 S.Ct. at 224-25. J.W. Hamp-
cal branches in a practice of uncertain con-
ton, Jr., & Co. V. United States, 276 U.S.
stitutional validity can arguably be defend-
394, 48 S.Ct. 348, 72 L.Ed. 624 (1928), also
ed as a "structural accommodation" that
involved a constitutional challenge to the
ought not be upset by the courts. Cf.
delegation of power by Congress to the
Note, Historical Practice, at 1773. With
executive. Because both cases involve
the political branches, this "structural ac-
the constitutionality of Congressional dele-
commodation" can, at least to some extent,
be inferred from silent acceptance by one
gations of authority to the President, they
political branch in the face of action by the
are distinguishable from the instant case,
other. The important distinction is that
which involves the independence of the pas-
silence by the courts cannot be construed
sive branch, the judiciary.¹²
as acquiescence in the constitutionality of
In sum, in our constitutional system the
even a longstanding practice.
judiciary is entrusted with the ultimate re-
This distinction sheds light on two cases
sponsibility for interpreting the Constitu-
cited by the majority for the broad proposi-
tion, including the authority to review the
tion that historical practice is entitled to
constitutionality of actions by the political
judicial deference. It is true that in United
branches of government. See Marbury v.
States v. Curtiss-Wright Export Corp.,
Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60
11. Despite broad language in Curtiss-Wright to
48 S.Ct. at 350-353. Only after that inquiry was
the effect that "an impressive array of legisla-
complete did Chief Justice Taft turn to a consid-
tion
enacted by nearly every Congress from
eration of historical practice. Id. at 412, 48
the beginning of our national existence
must
S.Ct. at 353. Again a close reading of the deci-
be given unusual weight," 299 U.S. at 327, 57
sion leads to the conclusion that the process of
S.Ct. at 224, a careful examination of Justice
constitutional interpretation is not complete ab-
Sutherland's opinion reveals that the historical
sent careful attention to constitutional values
factor was invoked only after a long and careful
and principles.
analysis of constitutional policies and values.
Indeed one influential commentator described
12. Moreover, all of the cases cited by the Co-
the opinion as "theoretical" and observed that,
lumbia Note in support of the structural accom-
"[a]lthough the decision might have been bot-
modation theory involve the relationship be-
tomed upon narrower grounds, Justice Suther-
tween the political branches-the executive and
land accepted the case as an invitation to pro-
the legislature-and not the independence of the
pound certain of his long-held convictions about
judiciary. See Note, Historical Practice, at 1778-
the source and distribution of the federal
80. For example, the Pocket Veto Case, 279 U.S.
government's foreign affairs power." L. Tribe,
655, 49 S.Ct. 463, 73 L.Ed. 894 (1929), involved
American Constitutional Law $ 4-2, at 159
the longstanding practice of Presidents of using
(1978). Curtiss-Wright is not authority for the
pocket vetoes to avoid Congress' override pow-
proposition that longstanding historical practice
er. Dames & Moore v. Regan, 453 U.S. 654, 101
should be decisive and end further inquiry into
S.Ct. 2972, 69 L.Ed.2d 918 (1981), concerned the
fundamental constitutional values. Quite the
authority of the President to settle claims by
contrary, Curtiss-Wright stands squarely in the
United States nationals against Iran in the ab-
tradition of careful constitutional interpretation
sence of explicit Congressional authorization.
that necessarily involves close scrutiny of the
McCulloch V. Maryland, 17 U.S. (4 Wheat.) 316,
values that animate the provisions of the Consti-
4 L.Ed. 579 (1819), involved the power of Con-
tution.
gress to create a national bank. Youngstown
Similarly in J.W. Hampton, Chief Justice Taft
Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 72
undertook a careful analysis of the policies and
S.Ct. 863, 96 L.Ed. 1153 (1952), in which the
principles underlying the separation of powers
structural accommodation argument was raised
and concluded that Congressional delegation of
by Justice Frankfurter in dissent, implicated the
the power to fix certain tariff rates was consist-
President's power to seize steel mills without
ent with those principles. 276 U.S. at 405-411,
authority delegated by Congress.
1030
751 FEDERAL REPORTER, 2d SERIES
(1803). Thus, the brute historical fact that
the other axis runs from each govern-
the executive or legislature has engaged in
mental branch to the others to insure
a practice, even for an extended period,
separation and independence in the con-
cannot by itself establish the constitutional-
stitutional structure.
ity of the practice. This is as it must be in
the constitutional scheme of things. Be-
Pacemaker Diagnostic Clinic of America
cause the judicial branch is passive, it can-
v. Instromedix, 725 F.2d 537, 541 (9th Cir.
not react to an assertion of power by the
1984) (en banc). In Pacemaker, we con-
political branches until third parties
cluded that, subject to limited exceptions,
present the courts with a concrete case or
the federal litigant has a personal right to
controversy. Judicial silence simply cannot
demand Article III adjudication. See Pace-
be construed as judicial acquiescence.
maker, 725 F.2d at 541.
2. Judicial deference to structural ac-
Pacemaker upheld the constitutionality
commodation is not appropriate when in-
of the Magistrates Act, which authorized
dividual rights are at stake.-There is a
adjudication by magistrates without Article
second reason that the historical practice of
III protections but with the consent of the
recess judicial appointments should not re-
parties. Id. at 542. We also noted in Pace-
ceive deference from the courts as a struc-
maker that the Supreme Court had ex-
tural accommodation. Article III's protec-
pounded on the existence of other limited
tions were not only designed to protect the
exceptions to Article III in Marathon, but
judiciary as an institution; the constitution-
none of those exceptions applies here. Id.
al guarantees of life tenure and undimin-
at 541.¹³ Moreover, we expressly negated
ished compensation were also intended to
any implication that our decision in Pace-
protect individuals. Justice Douglas em-
maker reached criminal cases. Id. In
phasized this important function of Article
cases involving a criminal defendant, Arti-
III when he wrote, "The safeguards ac-
cle III protections should be most zealously
corded Art. III judges were designed to
observed because individual liberty is di-
protect litigants with unpopular or minority
rectly at stake. Today's decision repre-
causes or litigants who belong to despised
sents the first time any court other than
or suspect classes." Palmore v. United
the Second Circuit in United States v. Al-
States, 411 U.S. 389, 412, 93 S.Ct. 1670,
locco, 305 F.2d 704 (2d Cir.1962), has sanc-
1684, 36 L.Ed.2d 342 (1973) (Douglas, J.,
tioned the adjudication of a criminal case in
dissenting); see also Glidden v. Zdanok,
an Article III court by a judge without
370 U.S. 530, 536, 82 S.Ct. 1459, 1465, 8
Article III protections.
L.Ed.2d 671 (1962). Justice Douglas' point
In sum, whatever role a process of struc-
was recently reinforced by our court, when
we observed:
tural accommodation may have to play in
adjusting the relationship between the po-
[S]eparation of powers protections, in⁻
litical branches, it is clear that judicial si-
some cases, have two components. One
lence in the face of action by the executive
axis reaches to the person affected by
or legislative branches cannot be construed
government action and encompasses his
as a waiver of the constitutional rights of
or her relation to a constitutional branch;
individuals. 14 Our system affords each in-
13. Northern Pipeline Co. v. Marathon Pipe Line
S.Ct. at 2868-2871. See also Note, Historical
Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598
Practice, at 1758.
(1981), established the general principle that
parties to a case or controversy in a federal
14. The Columbia Note argues that the personal
forum are entitled to have the cause determined
rights component of Article III is secondary to
by judges with the salary and tenure guarantees
its structural component. Note, Historical Prac-
of Article III. The Marathon Court cataloged
tice, at 1788-90. The Note acknowledges this
three limited exceptions to that general princi-
court's decision in Pacemaker, id. at 1788 & n.
ple: territorial courts, military tribunals, and
174, but argues that the fact that a litigant can
"public rights" cases. 458 U.S. at 64-70, 102
raise the lack of Article III judicial power for
the first time on appeal and the fact that a court
may raise the issue sua sponte are evidence that
UNITED STATES V. WOODLEY
1031
Cite as 751 F.2d 1008 (1985)
dividual litigant the opportunity to vindi-
teenth Amendment were still alive; indeed
cate his or her personal rights through the
the same Congress that authored the Four-
judicial process. The political branches
teenth Amendment segregated the schools
cannot extinguish such rights by establish-
in the District of Columbia. See R. Berger,
ing "adverse possession" through long-
Government by Judiciary 117-33 (1977).
standing historical practice.
But the Supreme Court in Brown was not
In cases where individual rights are at
daunted by the undisputed fact that the
stake, the Supreme Court has not hesitated
historical practice of racially segregating
to affirm fundamental constitutional princi-
schools had been accepted as consistent
ples and vindicate those rights even in the
with the Constitution for generations. The
face of an intimidating historical practice.
Brown Court realized that constitutional
One of the most renowned such cases is
tradition demands that the courts look be-
Brown v. Board of Education, 347 U.S.
yond the fact of historical acceptance when
483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). 15
a practice is challenged as unconstitutional.
In Brown, the Supreme Court over-
Our constitutional heritage requires courts
turned the hoary historical practice of seg-
to look to the values and principles that
regation, long rationalized by courts under
breathe life and meaning into the words of
the "separate but equal" doctrine. The
the Constitution. When those principles
Brown Court faced a practice that not only
demanded that segregation be struck down
had "been inextricably woven into the fab-
as inconsistent with the constitutional man-
ric of our nation," in the words of today's
date of equal protection of the laws, the
majority, but had received the imprimatur
Brown Court did not hesitate to vindicate
of the Supreme Court itself. See Plessy v.
the Constitution, despite a formidable com-
Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41
bination of historical practice and long-
L.Ed. 256 (1896). Racial segregation began
standing precedent. As one commentator
at time when the drafters of the Four-
concluded, "Brown v. Board of Education
a jurisdictional and not a personal claim is
inference of conflict
be correct, the issue
involved. This argument is clearly fallacious.
before us is of the very gravest moment. For
The fact that a claim of lack of Article III power
free speech and fair trials are two of the most
shares some characteristics with jurisdictional
cherished policies of our civilization, and it
claims does not demonstrate that it does not
would be a trying task to choose between them."
share other characteristics with personal claims.
Id. at 260, 62 S.Ct. at 192.
For example, in Pacemaker our court relied on
The approach of today's majority to the reso-
individual consent to validate the Magistrates
lution of such a conflict-deference to historical
Act, but waivability is a characteristic of person-
practice-was suggested by Justice Frankfurter
al rights and not jurisdictional requirements.
in his dissent. He believed that the case could
Pacemaker makes the law in this circuit clear: a
be resolved by recourse to "the uninterrupted
claim that an adjudication made in violation of
course of constitutional history
Id. at 279,
the salary and tenure provisions of Article III is
62 S.Ct. at 201 (Frankfurter J., dissenting). Jus-
both a personal claim and a jurisdictional one.
tice Frankfurter traced the authority of the
courts to impose prior restraints on the press
15. Another individual liberties case involving a
through the contempt power back to the com-
clash between historical practice and constitu-
mon law which "was written into the Judiciary
tional values is Bridges v. California, 314 U.S.
Act of 1789
by Oliver Ellsworth, one of the
252, 62 S.Ct. 190, 86 L.Ed. 192 (1941). Bridges
framers of the Constitution." Id. at 285, 62 S.Ct.
also resembles the case we decide today because
at 204. The Bridges majority rejected this con-
the Court was similarly faced with a conflict
tention, focusing on the values the framers were
between two provisions of the Constitution. In
attempting to realize in the First Amendment
Bridges the Court confronted the apparent con-
freedom of speech and of the press. Id. at
flict between a state's interest in assuring crimi-
264-65, 62 S.Ct. at 194-95. While never explicit-
nal defendants a fair and impartial trial as sup-
ly resolving the potential conflict between free
ported by the Sixth Amendment and the First
press and fair trial, the Court found that the
Amendment's guarantee of freedom of the
extrajudicial statement did not represent "a
press. A California trial court had punished as
clear and present danger" of interference with
contempt the publication of a newspaper edito-
the administration of justice, and hence found
rial and a telegram criticizing its proceedings in
the imposition of contempt to violate the First
labor dispute. As Justice Black wrote, "If the
Amendment. Id. at 272-73, 62 S.Ct. at 198-99.
1032
751 FEDERAL REPORTER, 2d SERIES
clearly demonstrates that even a long,
widespread, continuous, and judicially ap-
involved "structural accommodations" be-
proved practice, in an area of doubtful
tween the active political branches rather
constitutional meaning, will receive no judi-
than with the judiciary, the passive branch.
cial deference as evidence of a structural
Finally, recess judicial appointments impli-
accommodation when it is alleged to have
cate individual as well as institutional inter-
resulted in a denial of individual liberties."
ests. Even when the political branches
Note, Historical Practice, at 1783.
alone are involved, Chadha informs us that
longstanding historical practice is not deci-
The individual rights component of Arti-
sive. Clearly, the historical practice of re-
cle III thus provides a second distinction
cess judicial appointments is entitled to far
between the historical practice of recess
less weight than the historical practice con-
judicial appointment from the historical
sidered in Marsh; despite the age of the
practices considered in the majority's cases,
practice, it teaches us very little, if any-
Curtiss-Wright and J.W. Hampton.16 As I
thing, about the Framers' intentions. I see
have already noted, Curtiss-Wright and
no reason why the executive's practice of
W. Hampton both involved the constitu-
using the recess appointment power to fill
tionality of Congressional delegation of
judicial vacancies should be entitled to any
power to the President. Neither case im-
more weight than the practice held uncon-
plicated individual rights.
stitutional in Chadha.
Thus, my evaluation of the early histori-
cal practice of making recess judicial ap-
V. CONCLUSION
pointments leads me to conclude that, while
To summarize the results of the four-
the practice offers some support for the
part inquiry, the first two steps-a review
majority's decision that the Recess Ap-
of the text of the Constitution and the
pointments Clause carves out an exception
contemporaneous writings of the Found-
to Article III, the strength of that support
ers-offer little guidance for our decision.
is quite limited. Recess appointments are
The two remaining factors-constitutional
unilateral actions by the President; they
values and historical practice-come down
lack the deliberative quality that gives in-
on opposite sides of the scale, but the prin-
creased weight to the early enactments of
ciples of separation of powers and judicial
the First Congress. The original recess
independence that animate Article III heav-
appointments by President Washington
ily outweigh the concerns of expediency
were apparently made without the open
and efficiency that underlie the Recess Ap-
debate and discussion that would have "in-
pointments Clause. With the scales tipped
fused them with power" in the language of
sharply in favor of Article III by the funda-
Marsh. Moreover, lèss weight should be
mental constitutional values at stake, the
given to the historical practice of recess
historical practice fails to provide enough
appointments to the judiciary than was giv-
insight into the intentions of the Framers
en to the historical practice of delegating
to restore the balance, much less tip it in
power to the President in Curtiss-Wright
favor of the Recess Appointments Clause.
and J.W. Hampton, because those cases
In the last analysis, like Professor Hart, "Il
16. The majority also cites Stuart V. Laird, 5 U.S.
(1 Cranch) 298, 2 L.Ed. 115 (1803), but as in
commencing with the organization of the judi-
cial system, affords an irresistable answer, and
Curtiss-Wright and J.W. Hampton, the historical
has indeed fixed the construction." Id. 5 U.S. (1
practice considered in Stuart v. Laird does not
implicate individual constitutional rights.
Cranch) at 309. The practice, however, had
Stuart V. Laird is a one page opinion by Justice
already been eliminated by amendment of the
Patterson involving the question of whether Jus-
Judiciary Act in 1801, and Justice Patterson's
tices of the Supreme Court could also serve as
final observation was, "Of course, the question
circuit justices, consistent with the constitution-
is at rest, and ought not now to be disturbed."
al limitations of the original jurisdiction of the
Id. Although Justice Patterson's terse remarks
Supreme Court. Justice Patterson responded,
are somewhat cryptic, they surely cannot be
"To this objection, which is of recent date, it is
read to foreclose consideration of constitutional
sufficient to observe, that practice, and acquies-
values when a longstanding historical practice is
cence under it, for a period of several years,
challenged.
UNITED STATES V. GARCIA
1033
Cite as 751 F.2d 1033 (1985)
cannot believe that the Constitution con-
constitutional value is in conflict with his-
templates that any Federal judge
torical practice, the Constitution must tri-
should hold office, and decide cases, with
umph and practice must give way to princi-
all these strings tied to him."
ple.
I recognize that the only other court that
Today we must choose between Article
has considered the question we decide to-
III and the Recess Appointments Clause.
day reached the same result as the majori-
We must also choose between deference to
ty. In United States v. Allocco, 305 F.2d
the historical practice of many chief execu-
704 (2d 1962), the Second Circuit also
tives and vindication of the fundamental
held that the Recess Appointments Clause
constitutional values of judicial independ-
carves out an exception to Article III.¹⁷
ence and separation of powers. These
Like today's majority, however, the Second
choices are not easy, but they must be
Circuit assumed without analysis that his-
made. And when we choose with rever-
torical practice was dispositive of the ques-
ence for the Constitution and respect for
tion.
our proud heritage of constitutional inter-
The path chosen by our court and the
pretation, our choices are ultimately clear.
Second Circuit in Allocco is a tempting one.
The fundamental principle of separation of
Our burden would be far lighter if we
powers must prevail over a peripheral con-
could avoid the trying task of weighing
cern for governmental efficiency, and core
constitutional values against historical
constitutional values must prevail over un-
practice in a struggle to interpret the Con-
critical acceptance of historical practice.
stitution faithfully. Simple deference to
historical practice is an easy way to resolve
KEY NUMBER SYSTEM
deep conflicts.
Although a serious clash between histori-
cal practice and constitutional principle
may be a rare occurrence, we are not with-
out guidance from the Supreme Court as to
UNITED STATES of America,
how we should proceed. Our enterprise
Plaintiff-Appellant,
today is part of a long tradition of constitu-
V.
tional interpretation, one that has always
Ricardo R. GARCIA,
involved the evaluation of both constitu-
Defendant-Appellee.
tional values and historical practice. In
Chadha, the Court interpreted the Consti-
UNITED STATES of America,
tution so that its fundamental purposes
Plaintiff-Appellant,
would be fulfilled, despite the intimidating
V.
reality of a longstanding historical practice.
Antonio G. CARDENAS, Jr.,
In Marsh v. Chambers, the Court deferred
Defendant-Appellee.
to a practice that reflected the Framers'
carefully considered assessment of its con-
Nos. 83-3092, 83-3093.
stitutionality. In Brown v. Board of Edu-
United States Court of Appeals,
cation, where individual rights were at
Ninth Circuit.
stake. the Court chose fundamental consti-
Argued and Submitted April 5, 1984.
tutional values over a deeply rooted and
intractable historical practice. Thus, the
Decided Jan. 14, 1985.
lesson of our constitutional history is that
historical practice is but one guide to con-
The Government appealed from an or-
stitutional meaning. When a fundamental
der of the United States District Court for
17. Significantly, the Allocco decision in 1962
same result as today's majority and the Second
was made without the benefit of the Supreme
Circuit in Allocco. See Note, Historical Practice;
Court's recent decisions in Chadha, Marsh, and
Note, Recess Appointments.
Marathon. The two student notes reach the
5/7/62
and
3/10/1962
dent
8/10/62
UNITED STATES V. ALLOCCO
709
Cite as 305 F.2d 704 (1962)
ception" for judges appointed under the
be said that judicial offices must remain
recess power of Article II. This argu-
vacant despite the existence of the re-
ment appears to have been rejected by
cess power, because judges who might
Hamilton in the Federalist No. 78.9 It
be appointed thereunder do not have life
seems not to have occurred to Congress
tenure. The evils of legislative and exec-
in 1795 when Chief Justice Rutledge was
utive coercion which petitioner foresees
appointed by President Washington un-
have no support in our nation's history.
der the recess power, although the Sen-
This hypothetical risk must be weighed
ate later refused to confirm his nomina-
against the danger of setting up a road-
tion. 1 Warren, The Supreme Court in
block in the orderly functioning of the
United States History, 129-139 (rev. ed.
government which would result if the
1935) ; Reporter's Note, Ex parte Ward,
President's recess power were limited
173 U.S. 452, 19 S.Ct. 459, 43 L.Ed. 765
by petitioner's interpretation. See
(1899). Nor has petitioner directed our
2549-2553 infra. Since we hold that
attention to any instance subsequent to
Article II permits the President to ap-
1795 when the President's power to ap-
point Justices of the Supreme Court
point judges in this manner was chal-
and judges of inferior courts to serve
lenged. The practice has become SO
for a limited period, it necessarily fol-
common that recently the Chairman of
lows that such judicial officers may ex-
the House Committee on the Judiciary
ercise the power granted to Article III
estimated that approximately 50 federal
courts.
judges were sitting under recess appoint-
III.
ments. H.Comm.Jud., Recess Appoint-
ment of Federal Judges (1959). And
Petitioner's argument, in the main, is
when the Senate, expressing its special
that even if the President may use the
interest in the appointment of Supreme
recess power to appoint so-called Article
Court Justices, recommended that recess
III judges, he may not use that power to
appointments to the highest tribunal be
fill vacancies which arise while the Sen-
made sparingly, see S.Res. 334, 86th
ate is in session. He urges that the re-
Cong., 2d Sess. (1960), it did not chal-
cess power was never intended to apply
lenge the President's power to make such
to all vacancies; that in point of time it
appointments. As Senator Hart, the
may be exercised only when the Senate
sponsor of the Resolution, noted on the
has adjourned; and, in the plain lan-
floor:
guage of the Constitution, it may be used
only to fill vacancies which "happen dur-
"If there ever was ground for the
ing the Recess of the Senate." We are
argument that the more specific lan-
informed that Alexander Hamilton, in
guage of article III of the Constitu-
the Federalist No. 67, stated that the
tion should be construed as exclud-
recess power was created for "the pur-
ing judicial appointments from the
pose of establishing an auxiliary method
general authorization given the
of appointment," in cases where "the
President in article II, time has an-
general method was inadequate." Peti-
swered it. The President does have
tioner suggests, therefore, that if a va-
such power and this resolution does
cancy occurs when the Senate is in ses-
not argue otherwise." 106 Cong.
sion, the "general method" of appoint-
Rec. 18130 (1960).
ment, i. e., nomination by the President
Although Article III incorporates cer-
with the advice and consent of the Sen-
tain protections for permanent federal
ate, is adequate. In sum, we are told
judges considered vital to their inde-
that the recess power can be used only if
pendence, including life tenure, it cannot
a vacancy arises at a time when only the
9. "As to the mode of appointing the judges;
last numbers, that nothing can be said
this is the same with that of appointing
here which would not be useless repefi-
the officers of the Union in general, and
tion." Hamilton, Federalist No. 78.
has been so fully discussed in the two
$50.00
33 other
united Have
School
SERVICE DATE:
(Ssistant
Discrict 12
TABLE OF CONTENTS
Page
STATEMENT
1
CONCLUSION
4
CERTIFICATE OF SERVICE
5
ADDENDUM
Al
CITATIONS
Cases:
Marsh V. Chambers, No. 82-23 (July 5, 1983)
2
Constitution:
First Amendment, United States Constitution
2
- i -
IN THE UNITED STATES -COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 82-1028
UNITED STATES OF AMERICA,
Appellee
V.
JANET WOODLEY,
Appellant
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
SECOND SUPPLEMENTAL BRIEF FOR THE UNITED STATES
On October 25, 1982, this Court sua sponte requested the
parties to file supplemental briefs addressing the question
whether the presiding judge at appellant's trial, who was sitting
by virtue of a recess appointment, was qualified to exercise the
judicial power of an Article III court. We thereafter noted in
our supplemental brief that the practice of filling vacancies on
the Supreme Court and lower federal courts by means of recess
appointments has been common from the earliest days of the
Republic (Govt. Supp. Br. 5-6). */ In response, the Court
* / The practice of making recess appointments to Article III
(continued)
directed on June 27, 1983, that the government provide a complete
roster of all recess appointees to Article III courts since the
ratification of the Constitution.
The following listing was compiled from a search of the
individual files maintained by the Office of the Deputy Attorney
General for each federal judicial appointee. According to the
curator, these files contain the most accurate and complete
records available. However, the records for 18th and 19th
Century judicial appointees, which have been reconstructed from
documents originally maintained by the State Department, are
sometimes not as detailed as those records maintained for 20th
counts dates back to 1789 when President Washington appointed
Cyrus Griffin and William Paca to district judgeships under the
Recess Appointments Clause of the Constitution. As we argue in
our supplemental brief (Govt. Supp. Br. 5-7), the long tradition
that followed -- especially as developed in the early days of the
Republic when the farmers of the Constitution were active in the
national government -- unequivocally demonstrates that judges who
sit pursuant to recess appointments may constitutionally exercise
the same judicial power as judges who are nominated by the
President and confirmed by the Senate.
Since our supplemental brief was filed, the Supreme Court
has reached an analogous result in Marsh V. Chambers, No. 82-23
(July 5, 1983). There, the claimant challenged the Nebraska
Legislature's practice of hiring a chaplin and commencing each of
its sessions with a prayer as violative of the Establishment
Clause of the First Amendment. Rejecting this claim, the Court
took note of a similar congressional tradition that had continued
without interruption for almost 200 years since the First
Congress, which also drafted the Bill of Rights, sat (slip op. 3-
5). Thus, the Court stated (id. at 6):
[H]istorical evidence sheds light not only on
what the draftsmen intended the Establishment
Clause to mean, but also on how they thought
that Clause applied to the practice authorized
by the First Congress -- their actions reveal
their intent.
So too, the long and unbroken tradition of recess judicial
appointments attests to its constitutional origins.
Century appointees. Accordingly, there was occasionally
insufficient information upon which to calculate the amount of
time a judicial position was vacant prior to a particular recess
appointment.
The following compilation, which contains a listing of 46
active or senior judges and 263 inactive judges who have received
recess appointments, is divided into five categories. The first
three categories, relating to the appointee's name, the court to
which he was appointed, and the date of the recess appointment,
are self-explanatory. The "Action" category includes information
on whether the recess appointee was confirmed or rejected by the
Senate or resigned upon the expiration of the recess appointment
and the date of such action. Finally, the "Duration of Vacancy"
category measures the time between the creation of a judicial
vacancy and the making of a recess appointment. In computing
this time-frame, three rules of thumb have been employed: (1) in
instances of newly created judgeships, the computation has been
based on the effective date of the statute authorizing the
judicial positions; (2) in the case of successive recess
appointments, the computation has been made with reference to the
date of the first recess appointment in the series; and (3) in
cases involving relatively lengthy hiatuses, the period has been
rounded off to the nearest week or month to facilitate ease of
reporting.
In our view, the attached Addendum summarizing the long
standing practice of making recess appointments to Article III
counts, together with the legal arguments presented in our
supplemental brief, convincingly demonstrates that Judge Heen was
constitutionally empowered to preside over appellant's trial.
CONCLUSION
For the reasons set forth in our opening and supplemental
briefs, appellant's convictions should be affirmed.
Respectfully submitted.
DANIEL A. BENT
United States Attorney
District of Hawaii
ELLIOT ENOKI
ROBERT J. ERICKSON
Assistant U.S. Attorney
Attorney
District of Hawaii
Department of Justice
Washington, D.C. 20530
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that copies of the Second Supplemental
Brief for the United States were served by mail on appellant's
counsel at the following address:
Ms. Pamela Berman, Esquire
1188 Bishop Street
Suite 1105
Honolulu, Hawaii 96813
DATED: August 1, 1983
ROBERT RussD
Deputy Appellate Section
Criminal Division
Department of Justice
P.O. Box 899
Ben Franklin Station
Washington, D.C. 20044-0899
(202) 633-2841
ADDENDUM
*
RECESS APPOINTMENTS TO ARTICLE III COURTS
RECESS
DURATION OF
NAME
COURT
APPT.
ACTION
VACANCY
1. Abbott, Edmund, C.
D.N.M.
7/5/1910
Comm. never
6 mos.
issued
2. Adams, Elmer B.
E.D. Mo.
5/17/1895
Confirmed
None
12/9/1895
3. Adams, Elmer B.
CA 8
5/20/1905
Confirmed
26 days
12/12/1905
4. Adams, George B.
S.D.N.Y.
8/30/1901
Confirmed
None
12/17/1901
5. Adler, Simon L.
W.D.N.Y.
5/19/1927
Confirmed
11 wks.
1/16/1928
A1 I I
6. Allen, William J.
S.D. Ill.
4/18/1887
Confirmed
22 days
1/19/1888
7. Allgood, Clarence W.
N.D. Ala.
9/23/61
Confirmed
4 mos.
2/5/1962
8. Allred, James V.
S.D. Tex.
7/11/1938
Confirmed
6 wks.
2/16/1939
9. Almond, James L.
Customs &
10/23/1962
Confirmed
11 days
Patents
6/28/1963
Appeals
10. Alschuler, Samuel
CA 7
8/16/1915
Confirmed
3 yrs, 10 mos.
1/16/1916
11. Amidon, Charles F.
D.N.D.
8/31/1896
Confirmed
52 days
2/18/1897
RECESS
NAME
DURATION OF
COURT
APPT.
ACTION
VACANCY
12. Anderson, Harry B.
W.D. Tenn.
9/12/1925
Confirmed
9 wks.
1/29/1926
13. Andrews, Maurice N.
N.D. Ga.
10/21/1949
Rejected by
None
Senate,
8/9/1950
14. Archbald, Robert W.
M.D. Pa.
3/29/1901
Confirmed
27 days
12/17/1901
15. Atkinson, George W.
Ct. of
4/15/1905
Confirmed
Claims
5 days
1/16/1906
16. Baker, William E.
N.D. W. Va.
4/4/1921
Confirmed
8 mos.
5/3/1921
I
17. Ballard, Bland
A2
D. Ky.
10/16/1861
Confirmed
Unavailable
1/22/1862
I
18. Barbour, Phillip P.
E.D. Va.
10/8/1830
Confirmed
17 days,
12/16/1830
19. Bard, Guy K.
E.D. Pa.
12/20/1939
Confirmed
13 1/2 wks.
4/24/1940
20. Barksdale, Alfred D.
W.D. Va.
12/19/1939
Confirmed
None
2/1/1940
21. Barnes, David L.
D. R.I.
4/30/1801
Confirmed
10 wks.
1/26/1802
22. Bastian, Walter M.
D. D.C.
10/23/1950
Confirmed
None
12/14/1950
23. Bastian, Walter M.
D.C. Cir.
9/20/1954
Confirmed
10 weeks
12/2/1954
RECESS
NAME
DURATION OF
COURT
APPT.
ACTION
VACANCY
24. Bazelon, David L.
D.C. Cir.
10/21/1949
Confirmed
11 wks.
2/8/1950
25. Beatty, James H.
D. Idaho
3/7/1891
Confirmed
7 mos.
2/4/1892
26. Bell, Griffin B.
CA 5
10/5/1961
Confirmed
5 mos.
2/5/1962
27. Bingham, John A.
S.D. Fla.
6/4/1863
Recess
Unavailable
Appt.
Exp.,
7/4/1864
28. Bland, Theodorick
D. Md.
11/23/1819
Confirmed
5 mos.
I
1/5/1820
A3
29. Blatchford, Samuel
S.D.N.Y.
5/3/1867
Confirmed
None
I
7/16/1867
*
30. Boarman, Alexander
W.D. La.
5/18/1881
Confirmed
11 wks.
(date
unavail.)
31. Boice, Henry
W.D. La.
5/9/1849
Confirmed
Unavailable
8/2/1850
32. Bonsal, Dudley B.
S.D.N.Y.
10/5/1961
Confirmed
4 1/2 mos.
3/16/1962
33. Borah, Wayne G.
E.D. La.
10/3/1928
Confirmed
4 mos.
12/17/1928
34. Boreman, Herbert S.
CA 4
10/17/1958
Confirmed
7 mos.
6/16/1959
35. Bourne, Benjamin
D. R.I.
10/13/1796
Confirmed
6 wks.
12/22/1796
RECESS
DURATION OF
NAME
COURT
APPT.
ACTION
VACANCY
36. Bowen, Crate D.
S.D. Fla.
5/31/1928
Declined
5 1/2 mos.
Appt.
37. Boyd, James E.
W.D.N.C.
7/11/1900
Confirmed
2 yrs.
1/9/1901
38. Boyle, John
D. Ky.
10/20/1826
Confirmed
5 1/2 mos.
2/12/1827
39. Boynton, Thomas J.
S.D. Fla.
10/19/1863
Confirmed
16 wks.
1/20/1864
40. Brennan, William J.
Sup. Ct.
10/15/1956
Confirmed
None
3/19/1957
I
41. Brewster, Henry L.
N.D. Tex.
10/5/1961
Confirmed
4 1/2 mos.
3/16/1962
I
42. Brooks, George W.
E.D.N.C.
8/19/1865
Confirmed
Unavailable
1/22/1866
43. Brown, Addison
S.D.N.Y.
6/2/1881
Confirmed
None
10/14/1881
44. Brown, Arthur L.
D. R.I.
10/15/1896
Confirmed
11 wks.
12/15/1896
45. Bryant, Frederick H.
N.D.N.Y.
5/19/1927
Confirmed
11 wks.
12/19/1927
46. Buffington, Joseph
CA 3
9/25/1906
Confirmed
3 mos.
12/11/1906
47. Burns, Louis H.
E.D. La.
10/3/1925
Confirmed
6 wks.
12/21/1925
RECESS
DURATION OF
NAME
COURT
APPT.
ACTION
VACANCY
48. Burns, Owen M.
W.D. Pa.
10/21/1949
Confirmed
11 wks.
3/8/1950
49. Busteed, Richard
D. Ala.
11/17/1863
Confirmed
2 yrs., 10 mos.
1/20/1864
50. Byrne, William M.
S.D. Cal.
9/27/1950
Confirmed
1 yr.
12/13/1950
51. Caffrey, Andrew A.
D. Mass.
10/30/1960
Confirmed
5 mos.
8/9/1961
52. Call, Rhydon M.
S.D. Fla.
3/26/1913
Confirmed
7 mos.
4/24/1913
53. Campbell, Ralph E.
E.D. Okla.
11/11/1907
Confirmed
5 mos.
I
1/13/1908
A5
54. Cant, William A.
D. Minn.
5/21/1923
Confirmed
None
I
1/15/1924
55. Carland, John E.
D. S.D.
8/31/1896
Confirmed
3 wks.
12/15/1896
56. Carter, Oliver J.
N.D. Cal.
9/27/1950
Confirmed
8 wks.
12/13/1950
57. Casey, Joseph
Ct. of
5/23/1861
Confirmed
Unavailable
Claims
7/22/1861
58. Cashin, John M.
S.D.N.Y.
8/17/1955
Confirmed
17 days
3/1/1956
59. Cecil, Lamar R.
E.D. Tex.
8/31/1954
Confirmed
6 1/2 mos.
12/2/1954
60. Charlton, Thomas U.P.
D. Ga.
5/15/1821
Unavail.
Unavailable
RECESS
NAME
DURATION OF
COURT
APPT.
ACTION
VACANCY
61. Cheney, John M.
S.D. Fla.
8/26/1912
Recess Appt.
None
Expd. 3/9/1913
62. Chestnut, William C.
D. Md.
5/9/1931
Confirmed
3 days
1/12/1932
63. Clark, William L.
D. N.J.
5/21/1925
Confirmed
7 wks.
12/17/1925
64. Clarke, James M.
D. R.I.
9/15/1869
Declined Appt.
4 mos.
65.
Clary, Thomas J.
E.D. Pa.
10/21/1949
Confirmed
11 wks.
3/8/1950
66. Clay, Joseph, Jr.
D. Ga.
9/16/1796
Confirmed
Unavailable
I
1/2/1797
9
67.
Cochran, Andrew McC.
E.D. Ky.
4/24/1901
Confirmed
10 wks.
I
12/17/1901
68. Cochran, Ernest F.
E.D.S.C.
11/22/1923
Confirmed
None
1/21/1924
69. Coleman, Frank J.
S.D.N.Y.
5/19/1927
Confirmed
None
12/19/1927
70. Coleman, William C.
D. Md.
4/6/1927
Confirmed
5 wks.
12/19/1927
71. Conkling, Alfred
N.D.N.Y.
8/27/1825
Confirmed
8 mos.
12/14/1825
72. Cooper, Irving B.
S.D.N.Y.
10/5/1961
Confirmed
4 1/2 mos.
9/20/1962
73. Cotteral, John H.
W.D. Okla.
11/11/1907
Confirmed
21 wks.
1/13/1908
RECESS
DURATION OF
NAME
COURT
APPT.
ACTION
VACANCY
74. Cotton, William W.
D. Ore.
6/17/1905
Declined Appt.
5 wks.
7/26/1905
75. Creigthon, William, Jr. D. Ohio
11/1/1828
Recess Appt.
11 wks.
Expd. 12/13/1828
76. Curran, Edward M.
D.D.C.
10/16/1946
Confirmed
None
2/30/1947
77. Curtis, Benjamin R.
Sup. Ct.
9/22/1851
Confirmed
18 days
12/20/1851
78. Cuyler, Jeremiah
D. Ga.
6/12/1821
Confirmed
None
1/10/1822
79. Danaher, John A.
D.C. Cir.
10/1/1953
Confirmed
2 wks.
A7 I I
3/30/1954
80. Daugherty, Frederick A. N./E./W.
10/5/1961
Confirmed
4 1/2 mos.
D. Okla.
.
2/7/1952
81. Davis, David
Sup. Ct.
10/17/1862
Confirmed
6 1/2 mos.
12/8/1862
82. Davis, David J.
N.D. Ala.
12/10/1935
Confirmed
12 wks.
1/22/1936
83. Davis, John M.
E.D. Pa.
1/7/1964
Confirmed
2 yrs., 6 mos.
3/14/1964
84. Day, Edward W.
D. R.I.
11/10/1953
Confirmed
16 wks.
2/9/1954
85. Decker, Bernard M.
N.D. Ill.
12/12/1962
Confirmed
6 mos., 3 wks.
3/28/1963
86. DeLahay, Mark W.
D. Kan.
10/6/1863
Confirmed
1 mo.
3/15/1864
RECESS
DURATION OF
NAME
COURT
APPT.
ACTION
VACANCY
87. Devitt, Edward J.
D. Minn.
12/10/1954
Confirmed
2 mos.
2/4/1955
88. Dick, Robert P.
W.D.N.C.
5/29/1865
Declined Appt.
Unavailable
89. Dietrick, Frank S.
D. Idaho
3/19/1907
Confirmed
18 days
12/17/1907
90. Dobie, Armistead M.
CA 4
12/19/1939
Confirmed
2 mos.
2/1/1940
91. Downey, George E.
Ct. of
8/3/1915
Confirmed
21 wks.
Claims
1/17/1916
I
92. Druffel, John H.
S.D. Ohio
9/22/1937
Confirmed
1 mo.
A
12/8/1937
I
93. Dunlop, James
D.C. Cir.
10/3/1845
Confirmed
5 wks.
2/3/1846
94. Durell, Edward H.
E.D. La.
5/20/1863
Confirmed
16 wks.
2/17/1864
95. Edelstein, David N.
S.D.N.Y.
11/1/1951
Confirmed
9' mos.
4/7/1952
96. Edgerton, Alonzo J.
D.S.D.
11/19/1889
Confirmed
9 mos.
1/16/1890
97. Erskine, John
S.D. Ga.
7/10/1865
Confirmed
Unavailable
1/22/1866
98. Ewart, Hamilton G.
W.D.N.C.
7/13/1898
Recess Appt.
None
4/13/1899
Expd. 6/7/1900
99. Ewing, Nathaniel
W.D. Pa.
9/25/1906
Confirmed
None
12/11/1906
RECESS
DURATION OF
NAME
COURT
APPT.
ACTION
VACANCY
100. Fahy, Charles
D.C. Cir.
10/21/1949
Confirmed
11 wks.
4/4/1950
101. Fee, James A.
D. Ore.
3/18/1931
Confirmed
10 wks.
12/22/1931
102. Feikens, John
E.D. Mich.
10/13/1960
Recess Appt.
7 mos.
Expd. 9/27/1961
103. Feinberg, Wilfred
S.D.N.Y.
10/5/1961
Confirmed
4 1/2 mos.
3/16/1962
104. Finkelnburg, Gustavus
E.D. Mo.
5/20/1905
Confirmed
None
12/12/1905
I
105. Friedman, Monroe M.
N.D. Cal.
A9
7/17/1952
Nom. Withdrawn
1 yr., 4 mos.
7/24/1953
I
106. Gaillard, Theordore
CA 5
5/30/1801
Unavail.
Unavailable
107. Gaillard, Theodore
D. La.
4/13/1813
Unavail.
Unavailable
108. Garrett, Finis J.
W.D. Tenn.
11/22/1920
Recess Appt.
15 wks.
cancelled
12/7/1920
109. Gewin, Walter P.
CA 5
10/5/1961
Confirmed
4 1/2 mos.
2/5/1962
110. Gilchrist, Robert B.
E./W.D. S.C.
10/30/1839
Confirmed
1 wk.
2/17/1840
111. Giles, William F.
D. Md.
7/18/1853
Confirmed
10 days
1/11/1854
112. Glenn, Elias
D. Md.
8/31/1824
Confirmed
11 wks.
1/3/1825
RECESS
NAME
COURT
DURATION OF
APPT.
ACTION
VACANCY
113. Gray, Frank, Jr.
M.D. Tenn.
11/20/1961
Confirmed
6 1/2 mos.
2/17/1962
114. Gray, George
CA 3
3/29/1899
Confirmed
5 wks.
12/18/1899
115. Green, Ben C.
N.D. Ohio
10/5/1961
Confirmed
4 1/2 mos.
6/29/1962
116. Green, Edward T.
D.N.J.
10/24/1889
Confirmed
8 mos.
1/27/1890
117. Gresham, Walter Q.
D. Ind.
9/1/1869
Confirmed
1 wk.
12/22/1869
ALO I I
118. Gresham, Walter Q.
CA 7
10/28/1884
Confirmed
3 1/2 mos.
12/9/1884
119. Griffin, Cyrus
D. Va.
11/28/1789
Confirmed
9 wks.
#
2/10/1790
120. Grim, Allan K.
E.D. Pa.
10/21/1949
Confirmed
11 wks.
4/4/1950
121. Haight, Thomas G.
CA 3
4/1/1919
Confirmed
12 wks.
6/24/1919
122. Hall, Dominick A.
CA 5
7/1/1801
Confirmed
4 1/2 mos.
1/26/1802
123. Hall, Willard
D. Del.
5/6/1823
Confirmed
13 days
12/9/1823
124. Hand, Augustus N.
CA 2
5/19/1927
Confirmed
1 mo.
1/18/1928
RECESS
NAME
DURATION OF
COURT
APPT.
ACTION
VACANCY
125. Harper, Roy W.
E./W.D. Mo.
8/7/1947,
Confirmed
4 wks.
12/20/1947,
1/31/1949
6/22/1948
126. Hart, George L.
D.D.C.
8/29/1958
Confirmed
6 mos.
9/9/1959
127. Harvey, Mathew
D.N.H.
11/2/1830
Confirmed
3 mos.
12/16/1830
128. Hastie, William H.
CA 3
10/21/1949
Confirmed
11 wks.
7/19/1950
129. Hay, George
E.D. Va.
7/5/1825
Confirmed
3 mos.
3/31/1826
All 1 I
130. Hayes, Johnson J.
M.D.N.C.
4/6/1927
Confirmed
2 mos.
12/17/1927
131. Hays, Paul R.
CA 2
10/3/1961
Confirmed
4 1/2 mos.
3/16/1962
138. Hays, William H.
D. Ky.
9/6/1879
Confirmed
39 days
12/10/1879
139. Heen, Walter M.
D. Haw.
12/31/1980
Recess Appt.
2 yrs
Expd. 12/16/1981
140. Henderson, David E.
W.D.N.C.
9/1/1948
Resigned w/o
6 mos.
Confirm. 2/13/1949
141. Henley, J. Smith
E.D. Ark.
10/25/1958
Confirmed
7 wks.
9/2/1959
142. Henning, Edward J.
S.D. Cal.
4/24/1925
Confirmed
1 mo.
12/15/1925
RECESS
NAME
DURATION OF
COURT
APPT.
ACTION
VACANCY
143. Herlands, William B.
S.D.N.Y.
8/12/1955
Confirmed
10 mos.
6/26/1956
144. Higginbotham, A. L.
E.D. Pa.
1/6/1964
Confirmed
2 yrs., 4 1/2 mos.
3/14/1964
145. Hill, Delmas C.
CA 10
10/21/1949
Confirmed
11 wks.
3/8/1950
146. Hincks, Carroll C.
CA 2
10/3/1953
Confirmed
13 wks.
2/9/1954
147. Hitchcock, Samuel
D. Vt.
9/3/1793
Confirmed
Unavailable
1/28/1794
I
148. Holly, William H.
N.D. Ill.
11/8/1933
Confirmed
4 1/2 mos.
A12
2/20/1934
149. Holman, Jesse L.
D. Ind.
9/16/1835
Confirmed
I
9 1/2 wks.
3/29/1836
150. Hooper, Frank A.
N.D. Ga.
10/21/1949
Confirmed
11 wks.
2/21/1950
151. Hopkins, George W.
D.C. Cir.
10/5/1855
Rec. Appt.
Unavailable
Expd. 8/30/1856
152. Hopkinson, Joseph
E.D. Pa.
10/23/1828
Confirmed
Unavailable
2/23/1829
153. Howard, Clinton
W.D. Wash.
8/26/1912
Rec. Appt.
5 wks.
Expd. 3/4/1913
154. Hughes, Sarah T.
N.D. Tex.
10/5/1961
Confirmed
4 1/2 mos.
3/16/1962
RECESS
NAME
COURT
DURATION OF
APPT.
ACTION
VACANCY
155. Hundley, Oscar R.
N.D. Ala.
4/9/1907
Rec. Appt. Expd.
6 wks.
5/30/1908
5/24/1909
3/6/1909
156. Hunter, Edwin F.
W.D. La.
10/3/1953
Confirmed
28 wks.
2/9/1954
157. Iyoe, Michael L.
N.D. Ill.
11/21/1938
Confirmed
25 wks.
2/9/1939
158. Inch, Robert A.
E.D.N.Y.
4/23/1923
Confirmed
4 mos.
1/8/1924
159. Irwin, Thomas
W.D. Pa.
4/14/1831
Confirmed
Unavailable
3/21/1832
A13 I I
160. Johnson, Albert W.
M.D. Pa.
5/21/1925
Confirmed
7 1/2 wks.
12/17/1925
161. Johnson, Alexander S.
CA 2
10/25/1875
Confirmed
6 1/2 wks.
12/15/1875
162. Johnson, George E.Q.
N.D. Ill.
8/3/1932
Rejected; Rec.
1 yr., 5 1/2 mos.
Appt. Expd.
3/4/1933
163. Johnson, Joseph T.
W.D.S.C.
3/9/1915
Confirmed
6 days
1/24/1916
164. Johnson, Tillman
D. Utah
11/2/1915
Confirmed
27 wks.
1/18/1916
165. Johnson, Thomas
Sup. Ct.
8/5/1791
Confirmed
5 mos.
11/7/1791
166. Jones, Thomas G.
N./M.D. Ala. 10/7/1901
Confirmed
1 wk.
12/17/1901
RECESS
NAME
DURATION OF
COURT
APPT.
ACTION
VACANCY
167. Jones, William G.
N./M.D. Ala. 9/29/1859
Confirmed
2 mos.
1/30/1860
168. Kaufman, Samuel H.
S.D.N.Y.
6/22/1948
Confirmed
3 mos.
1/31/1949
169. Kaufman, Irving R.
S.D.N.Y.
10/21/1949
Confirmed
11 wks.
4/4/1950
170. Kerr, Ewing T.
D. Wyoming
10/22/1955
Confirmed
None
3/1/1956
171. Keech, Richmond B.
D.D.C.
10/14/1946
Confirmed
None
1/22/1947
172. Keller, Benjamin F.
S.D. W.Va.
6/18/1901
Confirmed
A14 I I
5 mos.
12/17/1901
173. Kerner, Oho
CA 7
11/21/1938
Confirmed
25 wks.
2/1/1939
174. Kilty, William
D.C. Cir.
3/23/1801
Confirmed
None
1/26/1802
175. Kincheloe, David H.
Customs Ct.
9/22/1930
Confirmed
None
1/29/1931
176. Kirkland, James R.
D. D.C.
10/21/1949
Confirmed
11 wks.
3/8/1950
177. Kirkpatrick, Andrew
D.N.J.
11/20/1896
Confirmed
6 wks.
12/15/1896
178. Knight, John
W.D.N.Y.
3/18/1931
Confirmed
13 days
1/6/1932
179. Knowles, John P.
D.R.I.
10/9/1869
Confirmed
1 mo.
1/24/1870
RECESS
NAME
DURATION OF
COURT
APPT.
ACTION
VACANCY
180. Kraft, Charles W.
E.D. Pa.
8/12/1955
Confirmed
6 mos.
3/28/1956
181. Lacombe, Emile H.
CA 2
5/26/1887
Confirmed
12 wks.
3/28/1888
182. Lanning, William M.
D.N.J.
6/1/1904
Confirmed
1 mo.
12/13/1904
183. Lawrence, William
S.D. Fla.
9/9/1863
Declined Appt.
Unavailable
184. Letts, Fred. D.
D.D.C.
5/5/1931
Confirmed
1 day
2/17/1932
185. Letts, Ira L.
D.R.I.
6/9/1927
Confirmed
:
None
A15 I I
1/4/1928
186. Levitt, Albert
D.V.I.
9/20/1935
Resigned w/o
Unavailable
Confirm. 7/31/1936
187. Lewis, William
D. Pa.
7/14/1791
Confirmed
9 wks.
11/7/1791
188. Lieb, Joseph P.
M.D. Fla.
8/13/1955
Confirmed
6 wks.
3/1/1956
189. Livingston, Henry B.
D.N.Y.
5/16/1805
Rec. Appt. Expd.
Unavailable
4/21/1806
190. Livingston, Henry B.
Sup. Ct.
11/10/1806
Confirmed
2 mos.
1/16/1807
191. Love, James M.
S.D. Iowa
10/5/1855
Confirmed
1 mo.
2/21/1856
192. Luse, Claude 2.
W.D. Wisc.
4/1/1921
Confirmed
5 1/2 mos.
4/27/1921
RECESS
DURATION OF
NAME
COURT
APPT.
ACTION
VACANCY
193. McCamant, Wallace
CA 9
5/25/1925
Resigned after
None
nom. rejected
by Senate
5/2/1926
194. McCarthy, James W.
D.N.J.
10/6/1928
Resigned w/o
27 wks.
Confirm.
1/31/1929
195. McClelland, Charles P.
Customs Ct.
8/21/1903
Confirmed
Unavailable
12/8/1903
196. McComas, Louis E.
D.C. Cir.
6/26/1905
Confirmed
None
12/6/1905
197. McDowell, Henry C.
W.D. Va.
11/12/1901
Confirmed
11 days
A16 I I
12/18/1901
198. McGohey, John F.X.
S.D.N.Y.
10/21/1949
Confirmed
11 wks.
3/8/1950
199. McHugh, William D.
D. Neb.
11/20/1896
Nom. Withdrawn
3 wks.
12/26/1896
200. McKinley, John
Sup. Ct.
4/22/1837
Confirmed
7 wks.
9/25/1837
201. McKinney, John M.
S.D. Fla.
11/8/1870
Confirmed
Unavailable
2/18/1871
202. McLaughlin, Charles F. D. D.C.
10/21/1949
Confirmed
11 wks.
2/28/1950
203. McVicar, Nelson
W.D. Pa.
9/14/1928
Confirmed
29 wks.
12/17/1928
204. Major, James E.
D. Ill.
6/12/1933
Confirmed
None
1/23/1934
RECESS
NAME
DURATION OF
COURT
APPT.
ACTION
VACANCY
205. Marshall, Thurgood
CA 2
10/5/1961
Confirmed
4 1/2 mos.
9/11/1962
206. Martin, James L.
D. Vt.
10/20/1906
Confirmed
23 days
12/11/1906
207. Matthews, Burnita S.
D.D.C.
10/21/1949
Confirmed
11 wks.
4/4/1950
208. Meek, Edward R.
N.D. Tex.
7/13/1898
Confirmed
5 mos.
2/15/1899
209. Merrick, William M.
D. D.C.
5/1/1885
Confirmed
1 day
3/30/1886
210. Mickelson, George T.
D. S.D.
12/9/1953
Confirmed
A17 I I
None
2/9/1954
211. Moinet, Edward J.
E.D. Mich.
6/13/1927
Confirmed
14 1/2 wks.
12/19/1927
212. Moore, Leonard P.
CA. 2
9/6/1957
Confirmed
8 mos.
2/25/1958
213. Morris, Martin F.
D.C. Cir.
4/15/1893
Unavail.
9 wks.
214. Morris, Robert
D.N.J.
8/28/1790
Confirmed
12 days
12/20/1790
215. Morrow, William W.
N.D. Cal.
9/18/1891
Confirmed
5 1/2 wks.
1/11/1892
216. Nealon, William J.
M.D. Pa.
12/13/1962
Confirmed
8 1/2 mos.
3/15/1963
217. Neese, C. G.
E.D. Tenn.
11/20/1961
Confirmed
6 mos.
2/7/1962
RECESS
DURATION OF
NAME
COURT
APPT.
ACTION
VACANCY
218. Newman, William T.
N.D. Ga.
8/13/1886
Confirmed
2 wks.
1/13/1887
219. Nicoll, John C.
N./S.D. Ga.
5/11/1839
Confirmed
4 days
2/17/1840
220. Niles, Henry C.
N./S.D. Miss. 8/11/1891
Confirmed
10 days
1/11/1892
221. Noel, James L.
S.D. Tex.
10/5/1961
Confirmed
4 1/2 mos.
3/16/1962
222. Noonan, Gregory F.X.
S.D.N.Y.
10/21/1949
Confirmed
9 1/2 mos.
4/25/1950
223. Nordbye, Gunnar H.
D. Minn.
3/18/1931
Confirmed
9 1/2 mos.
A18 I I
2/3/1932
224. Northcott, Elliott
CA 4
4/6/1927
Confirmed
11 days
12/15/1927
225. Noyes, Walter C.
CA 2
9/18/1907
Confirmed
15 1/2 wks.
12/10/1907
226. O'Donoghue, Daniel W.
D.D.C.
10/28/1931
Confirmed
9'1/2 mos.
1/26/1932
227. Otis, Merrill, E.
W.D. Mo.
2/23/1925
Confirmed
None
12/14/1925
228. Paca, William
D. Md.
12/22/1789
Confirmed
Unavailable
2/10/1790
229. Palmer, Alexander M.
Court of
3/16/1915
Declined Appt.;
8 days
Claims
Resigned
7/22/1915
230. Parker, John J.
CA 4
10/3/1925
Confirmed
15 wks.
12/14/1925
RECESS
NAME
COURT
DURATION OF
APPT.
ACTION
VACANCY
231. Peck, John W.
S.D. Ohio
10/5/1961
Confirmed
4 1/2 mos.
4/11/1962
232. Pennington, William S.
D.N.J.
6/19/1815
Confirmed
7 wks.
1/16/1816
233. Pitman, John
D.R.I.
8/4/1824
Confirmed
Unavailable
1/3/1825
234. Potter, Henry
C.A. 5
5/9/1801
Confirmed
12 wks.
1/26/1802
235. Preyer, Lunsford R.
M.D.N.C.
10/7/1961
Confirmed
4 1/2 mos.
2/7/1962
A19 I I
236. Purdy, Milton D.
D. Minn.
7/6/1908
Resigned w/o
None
3/6/1909
Confirm. 5/1/1909
237. Rabinovitz, David
W.D. Wisc.
1/7/1964
Rec. Appt.
1 yr.
Expd. 10/4/1964
238. Randolph, Peter
D. Miss.
6/25/1823
Confirmed
Unavailable
12/9/1823
239. Rao, Paul P.
Customs Ct.
6/22/1948
Confirmed
7 1/2 wks.
1/31/1949
240. Ray, George W.
N.D.N.Y.
9/12/1902
Confirmed
3 1/2 mos.
12/8/1902
241. Raymond, Fred M.
W.D. Mich.
5/8/1925
Confirmed
13 wks.
12/18/1925
242. Ricks, Augustus J.
N.D. Ohio
7/1/1889
Confirmed
1 mo.
1/16/1890
243. Ringo, Daniel
E./W.D. Ark. 11/5/1849
Confirmed
Unavailable
6/10/1850
RECESS
NAME
DURATION OF
COURT
APPT.
ACION
VACANCY
244. Ritter, Willis W.
D. Utah
10/21/1949
Confirmed
21 wks.
6/29/1950
245. Robb, Charles H.
D.D.C.
10/5/1906
Confirmed
5 days
12/11/1906
246. Roberts, Clarence J.
D.N.M.
9/15/1910
Confirmed
None
12/19/1910
247. Roberts, Floyd H.
W.D. Va.
7/6/1938
Rejected;
5 wks.
Resigned 2/6/1939
248. Robinson, Spottswood W. D.D.C.
1/6/1964
Confirmed
3 yrs., 7 1/2 wks
7/1/1964
A20 I I
249. Robson, Edwin A.
N.D. Ill.
9/29/1958
Confirmed
5 1/2 wks.
4/29/1959
250. Rogers, John H.
W.D. Ark.
11/27/1896
Confirmed
10 days
12/15/1896
251. Rosenberg, Louis
W.D. Pa.
11/20/1961
Confirmed
6 mos.
7/10/1962
252. Rosling, George
E.D.N.Y.
10/5/1961
Confirmed
4 1/2 mos.
3/16/1962
253. Rossell, William
D.N.J.
11/10/1826
Confirmed
6 1/2 wks.
12/19/1826
254. Rutledge, John
Sup. Ct.
7/1/1795
Rejected
2 days
12/15/1795
255. Ryan, Sylvester J.
S.D.N.Y.
11/1/1947
Confirmed
1 day
12/18/1947
RECESS
DURATION OF
NAME
COURT
APPT.
ACTION
VACANCY
256. Sage, George R.
S.D. Ohio
3/20/1883
Confirmed
8 days
1/7/1884
257. Sater, John E.
S.D. Ohio
3/18/1907
Confirmed
3 wks.
5/30/1908
3/1/1909
258. Scarburgh, George P.
Ct. of
5/8/1855
Rec. Appt.
Unavailable
Claims
Expd. 8/18/1856
259. Schnackenberg, Elmer J. CA 7
11/17/1953
Confirmed
11 mos.
2/9/1954
260. Sheppard, William B.
N.D. Fla.
9/4/1907
Confirmed
2 mos.
5/20/1908
261. Shipman, Nathaniel
D. Conn.
4/16/1873
Confirmed
2 days
12/8/1873
A21 I I
262. Simonton, Charles H.
E./W.D. S.C.
9/3/1886
Confirmed
None
1/13/1887
263. Skinner, Roger
N.D.N.Y.
11/24/1819
Confirmed
Unavailable
1/5/1820
264. Smith, Talbot
E.D. Mich.
10/5/1961
Confirmed
4 1/2 mos.
2/5/1962
265. Solomon, Gus J.
D. Ore.
10/21/1949
Confirmed
11 wks.
6/27/1950
266. Soper, Morris A.
CA 4
5/6/1931
Confirmed
1 mo.
1/12/1932
267. Spears, Adrian A.
W.D. Tex.
10/5/1961
Confirmed
4 1/2 mos.
3/16/1962
268. Stanley, Edwin M.
M.D.N.C.
10/23/1957
Confirmed
18 wks.
2/25/1958
RECESS
DURATION OF
NAME
COURT
APPT.
ACTION
VACANCY
269. Stephens, William
D. Ga.
10/22/1801
Confirmed
Unavailable
1/26/1802
270. Sugarman, Sidney
S.D.N.Y.
10/15/1949
Confirmed
2 1/2 mos.
4/28/1950
271. Sullivan, Philip L.
N.D. Ill.
11/8/1933
Confirmed
1 yr., 9 mos.
2/2/1934
272. Swaim, Hardress N.
CA 7
10/21/1949
Confirmed
11 wks.
2/8/1950
273. Swayne, Charles
N.D. Fla.
5/17/1889
Confirmed
28 wks.
4/1/1890
274. Switzer, Carroll O.
S.D. Iowa
10/21/1949
Rejected;
7 1/2 mos.
A22 I I
Resigned 12/26/1950
275. Tallmadge, Matthias B.
N.D.N.Y.
6/12/1805
Confirmed
4 1/2 mos.
1/17/1806
276. Tamm, Edward A.
D.D.C.
6/22/1948
Confirmed
7 wks.
3/29/1949
277. Tappan, Benjamin
D. Ohio
10/12/1833
Rejected
18 days
12/26/1833
278. Tavares, Cyrus N.
D. Haw.
10/13/1960
Confirmed
7 1/2 wks.
9/21/1961
279. Taylor, Robert L.
E.D. Tenn.
11/2/1949
Confirmed
None
3/8/1950
280. Thomas, Seth
CA 8
12/2/1935
Confirmed
2 days
1/22/1936
281. Thompson, Albert C.
S.D. Ohio
9/23/1898
Confirmed
1 day
12/20/1898
RECESS
DURATION OF
NAME
COURT
APPT.
ACTION
VACANCY
282. Thompson, Smith
Sup. Ct.
9/1/1823
Confirmed
5 1/2 mos.
12/9/1823
283. Tilson, William J.
M.D. Ga.
7/6/1926
Resigned w/o
5 1/2 wks.
3/5/1927
Confirm. 3/19/1928
284. Tolin, Ernest A.
S.D. Cal.
10/30/1951
Confirmed
2 mos.
6/10/1952
285. Trieber, Jacob
E.D. Ark.
7/26/1900
Confirmed
19 days
1/9/1901
286. Turner, Ezekiel B.
W.D. Tex.
11/18/1880
Confirmed
Unavailable
12/20/1880
287. Underwood, John C.
E.D. Va.
3/27/1863
Confirmed
1 yr., 11 mos.
11/25/1864
A23 I I
288. Van Fleet, William C.
N.D. Cal.
3/4/1907
Confirmed
2 days
4/2/1907
12/17/1907
289. Van Orsdel, Josiah A.
D.C. Cir.
11/14/1907
Confirmed
4 days
12/12/1907
290. Vaught, Edgar S.
W.D. Okla.
5/31/1928
Confirmed
8 days
1/8/1929
291. Walker, Thomas G.
D.N.J.
12/20/1939
Confirmed
1 yr., 6 mos.
3/5/1940
292. Ward, Henry G.
CA 2
5/18/1907
Confirmed
10 days
12/17/1907
293. Warren Earl,
Sup. Ct.
10/2/1953
Confirmed
24 days
3/1/1954
294. Washington, Bushrod
Sup. Ct.
9/29/1798
Confirmed
5 1/2 wks.
12/20/1798
RECESS
DURATION OF
NAME
COURT
APPT.
ACTION
VACANCY
295. Washington, George T.
D.C. Cir.
10/21/1949
Confirmed
11 wks.
4/28/1950
296. watkins, Robert D.
D. Md.
8/12/1955
Confirmed
10 wks.
3/1/1956
297. Webster, John S.
E.D. Wash.
4/28/1923
Confirmed
15 1/2 wks.
1/6/1924
298. Weldon, Lawrence
Ct. of
11/24/1883
Confirmed
19 days
Claims
12/18/1883
299. Welker, Martin
N.D. Ohio
11/25/1873
Confirmed
None
12/8/1873
300. Wilson, James C.
N.D. Tex.
3/5/19/9
Confirmed
1 wk.
A24 I I
6/24/1919
301. Winch, Joel C.C.
E.D. Tex.
10/11/1870
Rec. Appt.
1 yr., 9 mos.
Expd. 3/4/1871
302. Winchester, James
D. Md.
10/31/1799
Confirmed
8 days
12/10/1799
303. Winter, Harrison L.
D. Md.
11/9/1961
Confirmed
5 1/2 mos.
2/7/1962
304. Wolverton, Charles E.
D. Ore.
11/20/1905
Confirmed
27 1/2 wks.
1/15/1906
305. Woodburn, william
D. Nev.
9/23/1933
Declined
None
Appt.
306. Woodbury, Levi
Sup. Ct.
9/20/1845
Confirmed
10 days
1/3/1846
307. Woods, William A.
D. Ind.
5/2/1883
Confirmed
1 mo.
1/7/1884
NAME
RECESS
COURT
APPT.
DURATION OF
ACTION
VACANCY
308. Woolson, John S.
S.D. Iowa
8/14/1891
Confirmed
6 wks.
309. wright, James S.
1/11/1892
E.D. La.
10/21/1949
Confirmed
None
3/8/1950
A25 I I
and
the