Saturday, January 07, 2017
Elevating judges during recess
Based on comments to my earlier post and some emails, the key question on elevation and resignation is more specific: Is a judge elevated on a recess appointment differently situated than a judge elevated through the ordinary appointment process.
It seems to me that a recess appointment is substantively the same as a regular appointment, but the process is flipped--the nominee assumes the office first and then the Senate confirms (or does not confirm). But during the recess-appointment period (the period between the appointment and Senate confirmation), the officer is in all senses identical to someone appointed through the regular process, fully occupying that office and exercising its powers to the same extent. That being the case, if acceptance of a regular appointment accompanies a resignation from the lower-court (however that happens and pursuant to whatever legal source), so should acceptance of a recess appointment.
The counter argument must be that the trigger for resignation of a lower-court judgeship (again, whatever the source of that requirement) remains Senate confirmation and acceptance of the commission to the higher court. On this view, a recess appointment is not substantively the same as appointment following Senate confirmation--it merely ensures that the work of the office gets done until the Senate returns and confirms, but does not alone alone fill the vacancy, impose the resignation obligation, or create the new vacancy on the lower court.
But that means Obama erred in not making a recess appointment. I had argued that it was not worth eleven months of Justice Garland (the longest he would have been able to serve, until December 2017) if the end result would be Garland on neither SCOTUS nor the DC Circuit. But my reasoning was that Obama would not want to create the lower-court vacancy and Garland is too young to want to no longer be a judge. But my conclusion rested on the premise that Garland would have been unable to return to the DC Circuit when the recess appointment ended. But if Garland's DC Circuit seat would have been waiting for him next December, then Obama had nothing to lose and everything to gain from this move.
Obama may or may not have had nothing to lose by giving Garland a recess appointment but Garland had much to lose. What happens when the Trump Administration declares his COA seat vacant and promptly nominates a replacement? Will he go on TV and say "some law professors on the Internet said I could do this?" When Ike gave Brennan a recess appointment in the summer of 1956 because Senate Democrats refused to bring his nomination up for a vote, there was no concern because the president was running for reelection, not to mention being a heavy favorite. To do this after Obama's party candidate lost the election with the idea that maybe one or two cases might swing the liberal way with him on as an unconfirmed justice for a few months, if that, would be a death blow to his reputation, regardless of whether he gets to keep his old seat
Posted by: PaulB | Jan 7, 2017 7:32:47 PM
Also, the appointment would have been purely symbolic - as others like Jonathan Adler (https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/12/29/the-real-reason-president-obama-wont-recess-appoint-merrick-garland-to-the-supreme-court/?utm_term=.5460327ebcb8) have pointed out, the Senate could simply adjourn sine die and end Garland's term almost as soon as it began. Either way, I don't think it would have looked good for Obama.
Posted by: TJM | Jan 7, 2017 9:04:54 PM
When was there a "recess"?
Posted by: Joe | Jan 8, 2017 2:58:27 PM