JUSTICE TAKES A RECESS

Vol. 20 No. 1 (January, 2010) pp.42-45

JUSTICE TAKES A RECESS: JUDICIAL APPOINTMENTS FROM GEORGE WASHINGTON TO GEORGE W. BUSH, by Scott E. Graves and Robert M. Howard. Lanham, MD: Lexington Books, 2009. 128pp. Cloth. $55.00. ISBN: 9780739126615.

Reviewed by Lisa M. Holmes, Department of Political Science, The University of Vermont. Email: Lisa.M.Holmes [at] uvm.edu.

There have been a number of important books in recent years dedicated to analyzing various aspects of the judicial appointment process. For example, Nemacheck’s STRATEGIC SELECTION analyzed how presidents choose nominees to the U.S. Supreme Court. In PICKING FEDERAL JUDGES, Sheldon Goldman examined presidential agendas in selecting nominees to the lower federal bench. In ADVICE AND CONSENT, Epstein and Segal took on the task of examining each distinct aspect of the appointment process, from vacancy creation through nomination and confirmation. Nancy Scherer’s SCORING POINTS focused on the problematic influence of “elites” in the nomination and confirmation process for lower court judges. In JUSTICE TAKES A RECESS: JUDICIAL APPOINTMENTS FROM GEORGE WASHINGTON TO GEORGE W. BUSH, Scott E. Graves and Robert M. Howard analyze a rarely-examined aspect of the appointment process by focusing on recess appointments to the federal bench.

The recess appointment power had been dormant for a number of years prior to President Clinton’s unilateral appointment of Roger Gregory to the U.S. Court of Appeals for the Fourth Circuit. Gregory’s appointment ushered in a period where recess appointments, although rare, represented some of the most interesting and contentious examples of modern judicial appointment politics. The president’s recess appointment power, however, has received little attention in the literature on judicial appointment politics. Graves and Howard examine the circumstances under which presidents are more or less likely to make recess appointments to the federal bench, and analyze whether the lack of judicial independence associated with a recess appointment is cause for concern. In taking on these questions, Graves and Howard provide an important contribution to the growing scholarship in the judicial appointments area.

Aside from the overview and introduction provided in Chapter 1 and the conclusions addressed in Chapter 6, this book centers around four substantive chapters, each addressing some aspect of the use or implications of the recess appointment power. In Chapter 2, Graves and Howard provide an historical analysis of presidential use of recess appointments by examining all 308 recess appointments to Article III positions from George Washington in 1789 through George W. Bush in 2004. They find that recess appointments are less likely in recent decades, as the efficiency justifications for these unilateral appointments have decreased. [*43] Presidents also have acted strategically, with recess appointments being more likely when the length of time the recess appointee would sit increases. In addition, Graves and Howard find evidence that modern presidents (here defined by FDR’s first presidential term) have acted differently than their predecessors when it comes to recess appointments. Modern presidents with greater partisan support in the Senate, for example, are more likely to make recess appointments than are modern presidents with fewer partisan allies in the Senate, whereas this factor did not influence previous presidents when deciding unilaterally to seat people on the federal bench. Graves and Howard return to the issue of modern presidents and recess appointments in chapter 5.

In Chapters 3 and 4, Graves and Howard turn their attention to the issue of whether judges behave differently during the recess appointment period than they do after they have been confirmed to a lifetime tenured position on the bench. Chapter 3 focuses on the voting behavior of three Supreme Court justices (Earl Warren, William Brennan, and Potter Stewart) who were initially placed on the bench by President Eisenhower as recess appointees. Although the analysis here is confined to the behavior of the three justices for whom voting data are readily available, the results indicate that these justices did temper their voting behavior during their recess appointment period compared to their behavior after confirmation. Prior to confirmation, for example, justices were less likely to vote liberally in politically salient cases, and as well were less likely to rule against the interests of the federal government compared to their voting behavior post-confirmation.

In Chapter 4 (which the authors have written with Pamela Corley), Graves and Howard find similar results in their analysis of the behavior of 14 recess appointees to the courts of appeals. Prior to confirmation, recess appointees were less likely to vote liberally in salient cases. After confirmation, furthermore, circuit court judges were more likely to vote in favor of their ideological preferences than they were prior to confirmation, and as well were more inclined to vote in line with circuit and Supreme Court preferences. Prior to confirmation, the authors conclude that these judges were more likely to vote in ways that would appeal to those responsible for the nomination and confirmation process rather than in line with the expectations of their circuit colleagues or their Supreme Court superiors.

Chapter 5 returns to the questions of when and why presidents use the recess appointment power, focusing in this chapter on the use of this power by modern presidents (here, beginning with the advent of the Truman presidency). The analysis confirms and furthers many of the findings related to modern presidential behavior noted in Chapter 2. Graves and Howard conclude that modern presidents use the recess appointment power in “an opportunistic fashion” (p. 94), when the president is bolstered by stronger support in the Senate and stymied by minority opposition to nominee confirmation. This finding of course makes a lot of sense in the context of the most severe problems that plague the modern judicial appointment process, where even a president with a good deal of support in the Senate may be frustrated by the Senate minority’s filibuster power to [*44] prevent confirmation. The authors also find that presidential popularity in the modern era is negatively related to the use of the recess power and that recess appointments have become less prevalent in general as the modern presidential era has continued.

Graves and Howard offer their conclusions in Chapter 6 by arguing that, at least as far as judicial appointments go, the president’s ability to make unilateral recess appointments is a power whose time as passed. They conclude that the strategic nature of the use of this power (particularly by modern presidents), coupled with the loss of judicial independence as reflected in the recess appointees’ voting behavior, renders the recess appointment power both unnecessary and potentially damaging. Although the analysis of judicial voting behavior is based on a relatively small number of Supreme Court justices and circuit court judges, their findings do indicate that judges behave differently during the recess period than they do after confirmation. From this, Graves and Howard conclude that “there is considerable doubt that the recess appointee during the time of the recess actually provides the appointing president with any great policy benefit” (p. 98). One question the authors leave on the table here is whether the president is greatly benefitting in the long term by recess appointing those who would have unlikely secured confirmation otherwise. An analysis of the likelihood of confirmation (depending on whether the unconfirmed nominee was recess appointed or not) based on the nominee’s personal and professional characteristics as well as the political climate at the time of appointment would help further answer the question of whether presidents get anything valuable out of a recess appointment. The authors’ main conclusions, however, that recess appointments in the modern era are unnecessary, strategically motivated, and problematic to judicial independence are substantiated well by their analysis and findings.

The questions associated with the recess appointment power are likely to be of interest to a wide array of scholars, as well as to those activists, observers, and practitioners interested in appointments to the federal judiciary. This book is written for the scholarly audience, and will certainly be well-received by that audience. The substantive chapters all employ highly sophisticated statistical methods that are appropriate to the questions being asked. The lengthy discussion of the statistical approach in each of the substantive chapters is of course important and would be of interest to scholars in this area. This material, however, makes this book less accessible to the more casual reader interested in judicial appointment politics. Each of the four substantive chapters in this book holds up well on its own – so well, in fact, that some explanations and illustrative examples are repeated in multiple chapters. Some better editing of the book as a whole could have resolved this frustration. In addition, Chapter 3 in particular would have benefitted from better editing in general. The hypotheses in this chapter, for example, are not explained very well, and some of them are contradictory or at the very least worded confusingly. The problem associated with re-reading some of the same examples and stories in multiple chapters in the book is offset, however, by the clear focus throughout the book on the questions related to the [*45] strategic use of recess appointments by presidents and the changes in voting behavior of judges while awaiting confirmation. Relatively minor concerns about editing do not detract from the important contribution that Graves and Howard have made to our understanding of judicial appointment politics, both historically and in the modern context.

REFERENCES:

Epstein, Lee and Jeffrey A. Segal. 2005. ADVICE AND CONSENT: THE POLITICS OF JUDICIAL APPOINTMENTS. New York: Oxford University Press.

Goldman, Sheldon. 1997. PICKING FEDERAL JUDGES: LOWER COURT SELECTION FROM ROOSEVELT THROUGH REAGAN. New Haven: Yale University Press.

Nemacheck, Christine L. 2007. STRATEGIC SELECTION: PRESIDENTIAL NOMINATION OF SUPREME COURT JUSTICES FROM HERBERT HOOVER THROUGH GEORGE W. BUSH. Charlottesville: University of Virginia Press.

Scherer, Nancy. 2005. SCORING POINTS: POLITICIANS, ACTIVISTS, AND THE LOWER FEDERAL COURT APPOINTMENT PROCESS. Stanford: Stanford University Press.

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