July 16, 2009

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Leah Seupersad, 404-413-1354
University Relations

GSU professors analyze judicial recess appointments from George Washington to George W. Bush

ATLANTA — Judicial appointments made by presidents during Senate recesses are no longer necessary, according to a new book by two Georgia State University professors.

Scott Graves, assistant professor of political science, and Robert Howard, associate professor of political science, examine every judicial recess appointment from 1789 to 2005 in the book “Justice Takes a Recess.” The authors discover that U.S. presidents are strategic when they unilaterally appoint federal judges during Senate recesses, which can upset the separation of powers envisioned by the framers, shifting power away from one branch of government and toward another.                        

“Recess appointments made sense when the Congress took long breaks, transportation was poor and people did not live that long,” Howard said. “The president needed to keep government going. All those reasons are gone now and instead the president uses brief vacation recesses to appoint judges not out of necessity, but out of political considerations.”

The Constitution allows the president to fill all vacancies that may happen during the recess of the Senate, by granting commissions which expire at the end of their next session. In the book, the authors analyze how recess appointments were made cautiously for most of the twentieth century, leading to a virtual moratorium for several decades.  But in recent years there have been several controversial recess appointments, Howard said, including President George W. Bush’s appointment of William H. Pryor Jr. to 11th U.S. Circuit Court of Appeals and Charles W. Pickering Sr. to the Federal Appeals Court. President Bill Clinton also appointed Roger Gregory as the first African-American to the 4th Circuit Court of Appeals.

According to the book, the appointments suggest the beginning of a more assertive use of recess appointments in the increasingly politicized activity of staffing the federal courts. The strategic use of such appointments by strong presidents, to shift judicial ideology, results in recess power that threatens constitutional features of the judicial branch.

“There are costs to recess appointments,” Howard said. “You anger Congress and they can hinder the rest of the president's agenda. Presidents have to use the power strategically, calculating the costs and benefits of the appointment in relation to other items that the president wants to see achieved.”

“Justice Takes a Recess” is published by Lexington Books.