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The US Constitution requires the president to seek Senate approval for high-level appointments, but allows for recess appointments if the Senate is unavailable. Recess appointments have been used to ensure office functions and to give potentially controversial candidates a probationary period. They are valid until the end of the next Senate session and cannot be used to avoid confirmation altogether. Federal judges are appointed for life, making them valuable appointments for presidents. However, any unconfirmed nominations expire at the end of the president’s term.
The US Constitution requires the president to seek the advice and consent of the US Senate when appointing officials to most high-level offices, including cabinet positions and federal jurisdictions. However, in anticipation that the Senate may not always be available, the Constitution gives the president the right to nominate if the Senate is in recess without getting his advice or approval. These are called recess appointments.
The purpose of a recess appointment is generally to guarantee the performance of the office’s functions even in the event of the Senate’s unavailability to confirm the appointment. It has also served as a vehicle through which a president can give a potentially controversial candidate an opportunity to showcase his abilities in office – a probationary period, so to speak. Former President Harry S. Truman used a recess appointment to seat the first black federal judge, and two of the first three women to sit on the federal bench were given recess appointments. In each of these cases, the Senate then voted to confirm the appointments.
A withdrawal appointment is subject to certain restrictions and limitations. Most importantly, regardless of the statutory or constitutional term of office held, a recess appointment is valid only until the end of the next plenary session of the Senate following the appointment. Thus, a recess appointment cannot be used as a means to avoid the Senate confirmation process altogether, only to postpone it.
The withdrawal can only be paid upon the occurrence of certain conditions relating to the appointment, oriented towards the practicality of obtaining timely confirmation from the Senate. For example, if the vacancy existed more than 30 days prior to the interruption, a delegate to the vacant seat will not be paid until he or she has been confirmed by the Senate; however, if the vacancy arose within 30 days of the suspension, or if the Senate rejected a different candidate during that 30-day period, or if the nomination of someone other than the dismissal agent was left pending by the Senate at time of suspension started, then the person in charge of the withdrawal will be paid.
While senior vacancies in the executive branch may be filled by walk-out appointments, most of these are political in nature and are expected to be vacated by the incumbent as a new administration takes office. Federal judges, however, are for life, and more than 300 vacancies in the federal judiciary were initially filled by presidents using the appointing power of withdrawal. Of these, 15 were recess appointments to the Supreme Court, and all but one were later confirmed by the Senate. The only rejection was by John Rutledge, the recess appointment of former President George Washington to the post of Chief Justice. Of the total number of recess appointments to the federal bench, approximately 85% were ultimately confirmed.
Presidents value the ability to appoint federal judges due to their terms for life, which means that, by the nature of his or her appointments, a president can make a lasting mark on American jurisprudence long after leaving office. One of the problems with recess appointments to the federal judiciary, then, is that any nominations left unconfirmed at the end of the president’s term automatically expire, giving the next president an opportunity to make the nominations.
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