Shots Across the Bow
This article (via How Appealing) stating that Terrence Boyle won’t receive a recess appointment to the Fourth Circuit reminded me that I wanted to note one of the values of opinions respecting the denial of cert.
I previously served as co-counsel in some cases challenging the President’s recess appointment power as applied to intra-session recess appointments of Article III judges. The Supreme Court denied our cert. petition seeking review of an Eleventh Circuit opinion sustaining that power. Justice Stevens, however, wrote an opinion respecting the denial of cert., explaining that it was appropriate to deny review because the Administration had represented that the use of the power was rare. Stevens noted that the case raised a very substantial question, cautioning against “assum[ing] that our disposition of this petition constitutes a decision on the merits of whether the President has the constitutional authority to fill future Article III vacancies, such as vacancies on this Court, with appointments made absent consent of the Senate during short intrasession ‘recesses.’”
So far as I know, in the time since the Stevens opinion, the President has not made any recess appointments of federal judges. No doubt, that owes in part to the armistice reached in the Senate Judiciary Committee. But there are several long-pending nominees — including Judge Boyle — who have not received recess appointments. My best bet is that Administration lawyers concluded that if the President continued to make judicial recess appointments, the Supreme Court would take up the question and potentially rule against the Administration.
Another example of such a “shot across the bow” in an opinion respecting the denial of cert. is Padilla. In that case, a three-Justice concurrence in the denial of certiorari noted that “Padilla’s claims raise fundamental issues respecting the separation of powers, including consideration of the role and function of the courts.” That opinion may have a similar effect on the Administration’s decisions on how to detain U.S. citizens in the war on terror.
Opinions like these obviously don’t speak for the full Court and do not have the force of law. Whether they should have any effect at all is an interesting question. But, without overstating their importance, I do think that they are an interesting phenomenon.
True, there have been no recess appointments of judges since March 21, 2005. But to be more precise, there have been no recess appointments since Feb. 20, 2004. Furthermore, there have been only 2 recess appointments of judges at all under the current Administration.
I’d say that the lack of subsequent recess appointments owes less to Justice Stevens’s opinion (is there really much doubt how he’d decide such a case?) than to a variety of other considerations. Interbranch politics, for one. The wishes of nominees, for another.
As you note, there are “several” nominees who haven’t received recess appointments. When only two have received such appointments, I’d say that *those two* are the outliers, not the “several” others. The proper question to ask should not be “why is the President departing from the norm, and not recess appointing Boyle”?, but rather, “why did the President recess appoint Pickering and Pryor”? That would probably shed more accurate light on the actual considerations at issue.
Comment by Adam White — August 17, 2006 @ 2:49 pm
I appreciate the post’s historical note. Additionally, I agree with the subcommenter’s observation that interbranch ‘politics’ are at play. Equally as forceful a ’shot across the bow’ were some of the abjurations in the June 29, 2006 decision in re Hamdan.
I see these dissents as public memos to file balancing the majority decision against the undecided but important loose ends. This Supreme Court is far from the unison voice the administration would prefer, and the decision in Hamdan showed, when impelled, Scotus is willing to visit matters which viewed at a greater distance might appear to be components of a single unitary executive theory.
The ’shot across the bow’ is appropriately timely, as well, given that challenges to other elements of this strong executive view are rising through the various stages of litigation currently; which is to say the administration remains under duress in the courts based on its isolative approach to governance.
That the recess appointment technique should be a part of this mode of ruling the executive is to be expected, as it is adapted well to a unilateral executive theory of rule. And, although, as observed, there have been no judges awarded recess appointments, there have been numerous recess appointments of all stripe, including the New Years batch which included several political rewards to prominent and controversial figures to whom the president gave recess appointments to the Federal Elections Commission; and, of course, an analogous affair occurred during the brief recess last summer when the president placed the UN representative at his post after congress had a raucous discussion about his qualifications.
Recess appointments clearly have a timeliness purpose, but may be diverted to serve partisan ends, as well.
I appreciate the recognition the Justices have afforded to some meticulously argued aspects of the two cases’ dissenter statements to which the poster has linked. It makes the process worthwhile when the decision-making process in the future may find these bookmarkers to shots across a bow in skirmishes the Supreme Court has shown a willingness to revisit in more complete array.
Comment by JohnL — August 20, 2006 @ 12:05 pm