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The Constitution allows the president to Ofill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.O In Justice Takes a Recess, Scott E. Graves and Robert M. Howard address how presidents have used recess appointments over time and whether the independence of judicial recess appointees is compromised. They argue that these appointments can upset the separation of powers envisioned by the Framers, shifting power away from one branch of government and toward another. Examining every judicial recess appointment from 1789 to 2005, the authors discover that presidents are conditionally strategic when they unilaterally appoint federal judges during Senate recesses. Such appointments were made cautiously for most of the twentieth century, leading to a virtual moratorium for several decades, until three recent recess appointments to the courts in the face of Senate obstruction revived the controversy. These appointments suggest the beginning of a more assertive use of recess appointments in the increasingly politicized activity of staffing the federal courts. The authors argue that the recess appointment clause, as it pertains to the judiciary, is no longer necessary or desirable. The strategic use of such appointments by strong presidents to shift judicial ideology, combined with the lack of independence exhibited by judicial recess appointments, results in recess power that threatens constitutional features of the judicial branch.
- Published on: 2009-05-16
- Released on: 2013-03-29
- Format: Kindle eBook
Review
In this first-rate study of recess appointments, Graves and Howard rigorously examine the use and implication of temporary appointments to the bench. Their analysis provides the first empirical demonstration that the job security ensured by Article III is indeed essential for ensuring judicial independence. This book should be essential reading for those who care about the judiciary and the health of our constitutional system. (Forrest Maltzman, George Washington University)
Despite all the recent attention to judicial selection, recess appointments remained under the radar screen―until now. Justice Takes a Recess is not only a masterful treatment of this understudied topic, but also an excellent example of how to employ sophisticated social science data and methods to develop important policy implications. (Lee Epstein, Northwestern University School of Law)
Graves and Howard provide an important contribution to the growing scholarship in the judicial appointments area. (The Law and Politics Book Review, January 2010)
Leveraging impressive data and sophisticated methods, the authors rigorously address the interesting phenomenon of recess appointments to the federal courts. Anyone who cares about judicial appointments, the independence of the judicial branch, or the separation of powers in general will find this an important book. (Tom Hansford, University of California, Merced)
About the Author
Scott E. Graves is assistant professor of political science at Georgia State University.
Robert M. Howard is professor of political science at Georgia State University.
Most helpful customer reviews
1 of 1 people found the following review helpful.
Should Presidents Make Recess Judicial Appointments?
By Ronald H. Clark
Under Article II of the Constitution, Presidents can make so-called "recess appointments" for positions requiring Senate confirmation when the Senate is in recess--either adjourning for long periods (such as between sessions) or even during a session when the Senate recesses briefly, such as for holidays. If the recess appointment is not approved by the Senate by the end of the next session, it becomes null. At that point, the President would have to renominate the proposed appointee. While this power can be applied to any type of executive appointment, it raises special issues when the nominee is to assume a judicial position. This is the first book of which I am aware (although there are a slew of law review articles) that really examines the practice and raises the particularly important issue of whether judges holding recess appointments vote differently than they do after they are confirmed. The authors are two political scientists.
The book (which runs 100 pages) is divided into 6 chapters, focusing on historical development of the practice, Supreme Court appointments, Court of Appeals appointments, and two chapters dealing with a critical assessment of the practice. It should be pointed out that the authors employ an array of statistical operations to perform their analysis. However, they take care to state what their hypotheses are, briefly discuss their methodology, and then explain it all in each chapter's conclusion. The general reader can simply focus on the explanatory sections, skim the statistical portions, and review the conclusions to master the material. While I found some of the authors' findings were not persuasive, I leave it to the more statiscally gifted to evaluate their use of these tools. The book is hampered a bit by some inattentive editing, but this does not detract from the substance of the book.
The most important finding is that some judges holding recess appointments vote differently than after they are later confirmed (as most are). Whether the strategy is to avoid raising concerns in the Senate when it does vote upon their nomination, or to make sure that the President renominates them, the authors suggest that to varying extents, some recess judges "pull their punches." This strikes at the very idea of an impartial judiciary and is one of the main reasons that the authors argue (if that is appropriate for empirical social scientists) that the practice OUGHT not to be employed for judicial appointments. President Eisenhower made three such appointments to the Supreme Court (Warren, Brennan and Stewart); the fact that all three were fine Justices does not obviate the need to subject this practice to serious scrutiny. Thanks to this book, it is easy to get up to speed and develop an informed opinion on the issue.
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