United States v. Janet Woodley

We take this case en banc to address the constitutionality of a practice followed by the Executive for nearly 200 years. The question before us is whether the President of the United States may constitutionally confer temporary federal judicial commissions during a recess of the Senate pursuant to article II, section 2 of the Constitution.

* On February 28, 1980, Walter Heen was nominated to fill a judicial vacancy in the United States District Court for Hawaii. The Senate Judiciary Committee began confirmation hearings on his nomination on September 25, 1980. When the Senate recessed on December 16, 1980, testimony and hearings on the nomination were complete, but the nomination did not come before the full Senate for its advice and consent. During the Senate's recess, on December 31, 1980, President Carter conferred a commission on Judge Heen pursuant to the recess appointment clause of article II of the United States Constitution. Heen then took his oath and assumed his duties as district court judge. On January 21, 1981, Heen's nomination was withdrawn by President Reagan. Heen continued sitting as a district judge pursuant to his recess commission until December 16, 1981, when the 97th Congress ended its First Session.1

On September 18, 1981, while Heen was sitting out his commission, appellant Janet Woodley was indicted on three counts of narcotics violations. Woodley filed a motion to suppress evidence, which was denied by Heen. Judge Heen then presided over a bench trial on stipulated facts and found Woodley guilty as charged in the indictment.

Woodley appealed the denial of her motion to suppress. A panel of this court raised the issue sua sponte whether Judge Heen could constitutionally preside over Woodley's trial.2 The panel held that he could not and it vacated Woodley's conviction. United States v. Woodley, 726 F.2d 1328, 1339 (9th Cir.1983). The court having convened en banc, United States v. Woodley, 732 F.2d 111 (9th Cir.1984) (order granting rehearing en banc), we hold that the recess appointment clause extends to judicial officers and that a recess appointee to the federal bench can exercise the judicial power of the United States.

The recess appointment clause provides that: "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." U.S. Const. art. II, Sec. 2, cl. 3. Article III, in turn, provides in relevant part that: "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office." U.S. Const. art. III, Sec. 1.

Woodley contends that under generally accepted principles of statutory construction, the more specific language of article III governs over the general language of the recess appointment clause. She concludes therefore that article III forbids interim judicial recess appointments. We reject this argument.

The United States Supreme Court has unequivocally stated that "[t]he Constitution ... must be regarded as one instrument, all of whose provisions are to be deemed of equal validity." Prout v. Starr, 188 U.S. 537, 543, 23 S.Ct. 398, 400, 47 L.Ed. 584 (1903). Moreover, while article III speaks specifically about the tenure of federal judges, article II is equally specific in addressing the manner of their appointment. There is therefore no reason to favor one Article over the other.

The language of the recess appointment clause explicitly provides that the President has the power to fill all vacancies during the recess of the Senate. The Federalist papers clarify the meaning of the recess clause, stating that it "is to be considered as supplementary to the [clause] which precedes" and that the vacancies referred to "must be construed to relate to the 'officers' described in the preceding [clause]." The Federalist No. 67, at 455 (A. Hamilton) (J. Cooke ed. 1961). The preceding clause in question provides in relevant part that the President "shall nominate, and by and with the Advice and Consent of the Senate shall appoint ... Judges of the supreme Court, and all other Officers of the United States...." U.S. Const. art. II, Sec. 2, cl. 2 (emphasis added). This language further underscores that there is no basis upon which to carve out an exception from the recess power for federal judges. Particularly relevant in this context is Alexander Hamilton's statement that "[a]s to the mode of appointing the judges: This is the same with that of appointing the officers of the union in general...." The Federalist No. 78, supra, at 522.3

Woodley also argues that there is no historical evidence that the Framers intended the recess provision to apply to the judiciary. This argument is not only refuted by the express language of the recess clause, which, as previously noted, refers to all vacancies, but it is also refuted by legislative history, as well as historical practice, consensus, and acquiescence.

Although the recess appointment clause was adopted without debate, 2 Farrand, Records of the Federal Convention 533, 540 (1911), there is evidence that it was not entirely uncontroversial. Edmund Randolph, the governor of Virginia, initially declined to sign the Constitution, in part because the recess provision gave the Executive the power to confer judicial commissions during the recess of the Senate. 3 Farrand, supra, at 123, 127.

In 1789, shortly after ratification of the Constitution, George Washington, who had served as President of the Constitutional Convention, exercised his power under the recess provision. During the recess between the sessions of the First Congress, he conferred three recess district judge commissions. 30 The Writings of George Washington, 457-58, 473, 485 n. 75 (J. Fitzpatrick ed. 1939). At the time of these appointments, Edmund Randolph and two contributors to The Federalist, Alexander Hamilton and John Jay, served as members of President Washington's Cabinet. There is no evidence that they doubted the constitutionality of the recess appointments.4 Moreover, the district court judges were confirmed upon the return of the Senate without objection to their recess appointments. 1 Executive Journal of the Senate 38, 40 (1790). It is further noteworthy that President Washington's recess appointments of Justice Johnson in 1791 and of Chief Justice Rutledge in 1795 went unchallenged.5 One commentator has aptly noted that "the most significant historical fact is that by the end of 1823, there had been five recess appointments to the Supreme Court. During this period, when those who wrote the Constitution were alive and active, not one dissenting voice was raised against the practice." Note, Recess Appointments to the Supreme Court--Constitutional But Unwise?, 10 Stan.L.Rev. 124, 132 (1957).

The actions of the three branches of our government have consistently confirmed the President's power to make recess appointments. The Executive Branch has made extensive use of the recess power. Approximately 300 judicial recess appointments have been made in our nation's history.6 Presidents Eisenhower and Kennedy alone made fifty-three such appointments during their Administrations. See H. Chase, Federal Judges The Appointing Process 86-88, 114-15 (1972).

The Legislative Branch has consistently confirmed judicial recess appointees without dissent. Moreover, Congress has passed legislation providing for the salaries of recess appointees, without excluding judges. 5 U.S.C. Sec. 5503; see also S.Res. 334, 86th Cong., 2d Sess., 106 Cong.Rec. 18,130-45 (1960) (statement of Senator Hart) (confirming President's power to make judicial recess appointments).

Finally, we turn to the Judicial Branch. The only direct challenge, prior to the present action, to the President's power to make judicial recess appointments was rejected by the Second Circuit in United States v. Allocco, 305 F.2d 704 (2d Cir.1962), cert. denied, 371 U.S. 964, 83 S.Ct. 545, 9 L.Ed.2d 511 (1963). Although the United States Supreme Court has never passed on the issue, numerous Justices have been recess appointees. Chief Justice Rutledge sat as a recess appointee for six months and participated in two decisions. He delivered the opinion of the Court in United States v. Peters, 3 U.S. (3 Dall.) 96, 1 L.Ed. 535 (1795) and wrote with the majority in Talbot v. Jansen, 3 U.S. (3 Dall.) 105, 1 L.Ed. 540 (1795). Justice Curtis, who received a recess appointment in 1851, sat as a judge of the Circuit Court of the United States for the First Circuit and the Rhode Island District Court, while he was a recess appointee. See Note, supra, at 131 n. 24. Altogether, fifteen recess appointments have been made to the Supreme Court. Staff of House Comm. on the Judiciary, 86th Cong., 1st Sess., Recess Appointments of Federal Judges 40 (Comm.Print 1959). Of these, at least four appointees sat on the Court prior to their confirmation. Note, supra, at 125. There is no evidence that any member of the Supreme Court ever objected to this practice on constitutional grounds.

Our historical review demonstrates that there is an unbroken acceptance of the President's use of the recess power to appoint federal judges by the three branches of government. Woodley argues, however, that the Supreme Court's recent decision in INS v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983), teaches that historical patterns cannot save an unconstitutional practice.

We agree that historical acceptance alone cannot conclusively establish a practice's constitutionality. Yet while we rely only in part on historical consensus in upholding the President's authority to make judicial recess appointments, we cannot ignore historical observance. The teachings of Chadha are not to the contrary. That case held that historical acceptance of the legislative veto could not prevent it from running afoul of the Constitution. 103 S.Ct. at 2279 n. 13. The legislative veto is, however, a recent practice, barely 50 years old. Its use does not reach back to the days of the Framers, such as the practice at issue. Moreover, it is an impermissible statutory methodology, unsupported by an express constitutional grant of authority. While the use of the recess clause to make temporary judicial appointments has been accepted by all three branches of government for nearly 200 years, the relatively young legislative veto has been referred to by the United States Supreme Court as "the most recent episode in a long tug of war between the Executive and Legislative Branches...." Buckley v. Valeo, 424 U.S. 1, 140 n. 176, 96 S.Ct. 612, 692 n. 176, 46 L.Ed.2d 659 (1976) (per curiam).7

The United States Supreme Court has made clear that considerable weight is to be given to an unbroken practice, which has prevailed since the inception of our nation and was acquiesced in by the Framers of the Constitution when they were participating in public affairs. See, e.g., United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 322, 57 S.Ct. 216, 221, 81 L.Ed. 255 (1936); J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 412, 48 S.Ct. 348, 353, 72 L.Ed. 624 (1928); Stuart v. Laird, 5 U.S. (1 Cranch) 185, 191, 2 L.Ed. 115 (1803). This principle was reaffirmed by the Court less than a month after Chadha. In Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), Chief Justice Burger, who also authored Chadha, noted that "[i]n light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society." Marsh, 103 S.Ct. at 3336. Much in the same way, the use of the recess provision to appoint federal judges has been inextricably woven into the fabric of our nation.

Woodley says that a technical argument could be made that the language of the recess clause giving the President the power to fill all vacancies that "may happen during the Recess of the Senate," means that only those vacancies that occur during the recess itself can be filled by Presidential appointment. She reasons therefore that Judge Heen's appointment is invalid, because the vacancy which he filled did not occur during a recess of the Senate. Woodley's interpretation conflicts with a common sense reading of the word happen, as well as the construction given to this word by the three branches of our government.

In a vacuum, the use of the word happen could be interpreted to refer to vacancies that either "happen to occur" or "happen to exist" during a recess of the Senate.8 Yet the former interpretation would lead to the absurd result that all offices vacant on the day the Senate recesses would have to remain vacant at least until the Senate reconvenes. Not only judicial positions, but all offices within the purview of article II, Sec. 2, clause 2 would have to remain vacant. The positions of cabinet members and other high government officials would have to remain unfilled until the return of the Senate. If a vacancy occurred on the last day before the Senate's recess, the President would be without power to fill that vacancy in the ensuing recess. Even assuming that the Senate was informed of the vacancy prior to its recess and the President submitted a timely nomination, the Senate would still be faced with the dilemma of either confirming a candidate of whose qualifications little is known or leaving that office vacant until the Senate reconvenes. We agree with the Second Circuit that this interpretation "would create Executive paralysis and do violence to the orderly functioning of our complex government." Allocco, 305 F.2d at 712; see also Note, supra, at 126 (apparent purpose of recess clause "was to assure the President the capacity for filling vacancies at any time to keep the Government running smoothly"). We cannot attribute to the Framers an intent to create such a potentially dangerous situation. See South Carolina v. United States, 199 U.S. 437, 449, 26 S.Ct. 110, 111, 50 L.Ed. 261 (1905).

We also emphasize that both the courts and the Executive Branch have consistently construed the recess clause as giving the President the authority to fill all vacancies that exist while the Senate is in recess. See, e.g., Allocco, 305 F.2d at 712-15 (President may make appointments to all vacancies that exist during a Senate recess); In re Farrow, 3 Fed. 112, 116 (N.D.Ga.1880) (President has power to make appointments "notwithstanding the fact that the vacancy filled by his appointment first happened when the senate was in session."); 1 Op.Att'y Gen. 631, 633 (1823) ("[W]hether [a vacancy] arose during the session of the Senate, or during their recess, it equally requires to be filled."); 2 Op.Att'y Gen. 525, 528 (1832) (President may make recess appointments " 'if there happen to be any vacancies during the recess.' "); 19 Op.Att'y Gen. 261, 263 (1889) ("[W]herever there is a vacancy there is a power to fill it.") (emphasis in original).

Both Houses of Congress have apparently recognized the soundness of this construction of the recess power. See Nomination of Charles Beecher Warren to be Attorney General, 67 Cong.Rec. 263-64 (1925) (recognizing President's power to fill vacancies regardless of when they arose); 52 Cong.Rec. 1369-70 (1915) (statement of Congressman Borland) (recognizing power of president to fill vacancies that occurred during a previous session of the Senate). Moreover, Congress has provided for payment of recess appointees, such as Heen, whose nominations were pending at the time of the Senate's recess. 5 U.S.C. Sec. 5503(a)(2). We therefore decline to adopt Woodley's "happen to occur" argument and recognize the President's power to fill all vacancies that exist during a recess of the Senate.

Finally, we address Woodley's related arguments that the recess appointment clause is merely a "housekeeping measure" and that Judge Heen lacks the attributes of an article III judge contrary to the teachings of Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982).

In Marathon, Justice Brennan's plurality opinion held that Congress may not, through a statute, constitutionally vest the non-article III adjunct bankruptcy judges with article III powers. Id. at 87, 102 S.Ct. at 2880.9 Yet the present case is not concerned with an attempt to circumvent article III by statute, but with the scope of an express constitutional provision. Moreover, the recess appointment clause is not simply a statutory solution to a judicial problem or a mere housekeeping measure. The clause prevents the Executive from being incapacitated during the recess of the Senate. This in turn prevents extended judicial vacancies, which can cause the denial of the important right of access to the courts. The Framers considered the recess appointment clause sufficiently important to include it in the Constitution. In the early days of the Republic, travel time was measured in days, not hours, and extended congressional recesses were expected. The advent of modern jet travel, instant communication, and present day prolonged sessions of Congress do not justify characterizing the recess appointment clause merely as a housekeeping measure.

A recess appointee lacks life tenure and is not protected from salary diminution. As a result, such an appointee is in theory subject to greater political pressure than a judge whose nomination has been confirmed. Yet our Constitution has bestowed upon the Executive the power to make interim judicial appointments. This power is not unfettered, however, but is subject to its own limitations and safeguards. It may only be invoked when the Senate is in recess, and recess commissions expire at the end of the next congressional session. U.S. Const. art. II, Sec. 2, cl. 3; see Staebler v. Carter, 464 F.Supp. 585, 597 (D.D.C.1979). We must therefore view the recess appointee not as a danger to the independence of the judiciary, but as the extraordinary exception to the prescriptions of article III. Cf. Marathon, 458 U.S. at 70, 102 S.Ct. at 2871 (certain exceptional powers bestowed upon Congress by Constitution not subject to prescriptions of article III). The judicial recess appointee, who has sworn to uphold the Constitution, fills a void left by those preceding in office, thereby permitting the unbroken orderly functioning of our judicial system.

It should also be noted that as a practical matter, a recess appointee could not be a "lion under the throne," subject to the whims of the President. 28 U.S.C. Sec. 144 (bias or prejudice of a judge). "The evils of legislative and executive coercion ... have no support in our nation's history." Allocco, 305 F.2d at 709.

Even viewing the recess clause as an unwise constitutional provision, it is not for this court to redraft the Constitution. Changes in that great document must come through constitutional amendment, not through judicial reform based on policy arguments. Accordingly, we hold that Judge Heen, as a recess appointee to the federal bench, could exercise the judicial power of the United States.

The case is remanded to the panel for determination on the merits.

BROWNING, Chief Judge, SNEED, SKOPIL, FARRIS, ALARCON and POOLE, Circuit Judges, concurring.

NORRIS, Circuit Judge, with whom FLETCHER, FERGUSON and REINHARDT, Circuit Judges, join dissenting.

Article III of the Constitution provides that "[t]he judicial Power of the United States" shall be exercised by judges whose independence from the political branches of government is assured by guarantees of life tenure and undiminished compensation. Today, our Court carves out an exception to this explicit and unqualified constitutional command by holding that the judicial power of the United States may be exercised by judges who serve at the pleasure of the President and the Senate. As Professor Freund aptly commented, every recess appointee sits with "one eye over his shoulder on Congress." Harvard Law School Record, October 8, 1953, p. 1, col. 5. He has no assured tenure beyond the next session of the Senate.

I agree with the majority that there is a direct conflict between the Recess Appointments Clause of Article II and the tenure and salary provisions of Article III of the Constitution. I also agree with the majority that in deciding which clause should prevail, we must look beyond the Constitution itself. As the majority observes, the text gives us "no reason to favor one article over the other."

Nor do the contemporaneous writings of the Framers of the Constitution shed much light on the issue. The Federalist and other sources overflow with references to the importance of an independent judiciary as a corollary of the very centerpiece of the constitutional plan--the separation of powers. But the records of the constitutional era tell us virtually nothing about the Recess Appointments Clause or how it was to interact with the tenure and salary provisions of Article III.

My major point of disagreement with the majority is its reliance upon the executive's practice of making recess judicial appointments as virtually the sole basis for its conclusion that the practice is constitutional. In my view, the majority skips what I believe should be a crucial step in the constitutional inquiry: evaluating and balancing the competing constitutional values at stake. Because of its uncritical acceptance of the historical practice as determinative of the constitutional issue, the majority fails to make any serious comparative analysis of the concerns for governmental efficiency underlying the Recess Appointments Clause and the principle of judicial independence underlying the tenure and salary provisions of Article III.

We need only look to recent history to appreciate that there is genuine tension between the values underlying the two opposing constitutional provisions. President Eisenhower's recess appointments to the Supreme Court of Chief Justice Earl Warren in 1953 and Justice Brennan in 1956 both created controversy about the legitimacy of recess appointments to that Court. Senator Joseph McCarthy's public interrogation of Justice Brennan while the latter was a sitting Justice of the Court tells its own cautionary tale:

Senator McCarthy. You, of course, I assume, will agree with me and a number of the members of the committee--that communism is not merely a political way of life, it is a conspiracy designed to overthrow the United States Government.

Mr. Brennan. Will you forgive me an embarrassment, Senator. You appreciate that I am a sitting Justice of the Court. There are presently pending before the Court some cases in which I believe will have to be decided the question what is communism, at least in the frame of reference in which those particular cases have come before the Court.

I know, too, that you appreciate that having taken an oath of office it is my obligation not to discuss any of those pending matters. With that qualification, whether the label communism or any other label, any conspiracy to overthrow the Government of the United States is a conspiracy that I not only would do anything appropriate to aid suppressing, but a conspiracy which, of course, like every American, I abhor.

Senator McCarthy. Mr. Brennan, I don't want to press you unnecessarily, but the question was simple. You have not been confirmed yet as a member of the Supreme Court. There will come before that Court a number of questions involving the all-important issue of whether or not communism is merely a political party or whether it represents a conspiracy to overthrow this Government.

I believe that the Senators are entitled to know how you feel about that and you won't be prejudicing then any cases by answering the question.

Hearings Before the Senate Committee on the Judiciary on Nomination of William Joseph Brennan, Jr.: 85th Cong., 1st Sess., 17-18 (1957).

Even before Justice Brennan's ordeal, the recess appointment of Chief Justice Warren provoked what seems to have been the first scholarly comment concerning the constitutionality of such appointments.1 The Warren appointment occurred after Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), was originally argued to the Supreme Court but before reargument actually took place. In response to the Warren appointment, the eminent constitutional scholar Professor Henry M. Hart, Jr. warned that for Warren to take his seat and decide cases before his confirmation by the Senate would "violate the spirit of the Constitution, and possibly also its letter." Harvard Law School Record, October 8, 1953, p. 2, col. 2. Professor Hart noted that Warren's permanent appointment would besubject to three future contingencies: (1) the decision of the President to forward his nomination to the Senate; (2) the decision of the President not to withdraw the nomination before it has been acted upon; and (3) the decision of the Senate to confirm the nomination. The Senate will be entirely free ... to postpone its action until near the close of the session in order to see how the new nominee is going to vote.

Id. Hart then stated, "I cannot believe that the Constitution contemplates that any Federal judge ... should hold office, and decide cases, with all these strings tied to him." Id. Recognizing that, as the majority here stresses, recess appointments had been made in the past and that Attorneys General had assumed such appointments to be valid, Hart stressed that "occasional practice backed by mere assumption cannot settle a basic question of constitutional principle." Id. Looking to "the spirit and purpose of the Constitution," Hart observed,

the impropriety [of recess appointments to the federal judiciary] becomes unmistakable. On few other points in the Constitutional Convention were the framers in such complete accord as on the necessity of protecting judges from every kind of extraneous influence upon their decisions.

cannot possibly have this independence if his every vote, indeed his every question from the bench, is subject to the possibility of inquiry in later committee hearings and floor debates to determine his fitness to continue in judicial office.

Id. The majority today all but ignores the careful analysis of constitutional purposes and values that Professor Hart obviously believed was critical to resolution of the tension between Article III and the Recess Appointments Clause.

To be sure, the executive's practice of vesting recess appointees with Article III power has a long and impressive historical pedigree, but the majority indiscriminately defers to this practice as dispositive of its constitutionality. In my view, such uncritical acceptance of a practice as a basis for judging its constitutionality is inconsistent with the judiciary's historic role as the final arbiter of the constitutionality of the actions of the political branches of government. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803). To make my point that the majority allows practice to play an exaggerated role in its constitutional analysis, I will employ a four-step inquiry. First, I will review the text of the Constitution. Second, I will examine the contemporaneous writings of the Framers as they pertain to the two clauses in question. Third, I will weigh the competing values that animate the two clauses. Finally, after discussing the role of historical practice as a factor in constitutional analysis generally, I will consider the specific practice of making recess judicial appointments as a factor in deciding the constitutionality of that practice.

The Constitution presents us with two separate and contradictory clauses, one in Article II and one in Article III, each clear and unambiguous on its face. The Recess Appointments Clause, Article II, section 2, provides:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

U.S. Const., art. II, Sec. 2, cl. 3.

When read in light of a preceding clause, U.S. Const. art. II, Sec. 2, cl. 2, which gives the President the general power to "appoint Ambassadors ..., Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for ...," the language of Article II seems to empower the President to grant recess commissions to fill judicial vacancies.

Article III, on the other hand, seems equally clear that only persons with the independence secured by life tenure and protection against diminished compensation may exercise the judicial power of the United States. The relevant portion of Article III states simply and unconditionally,

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.

U.S. Const. art. III, Sec. 1. On its face, this language admits of no exception; its command is that only judges with Article III protections may wield Article III power.

Hence, we face an extraordinary situation: a direct conflict between two provisions of the Constitution. No accommodation seems possible; one clause must yield to the other. The majority, in holding that Judge Heen could serve as an Article III judge without possessing Article III protections, resolves the conflict in favor of the Recess Appointments Clause. In doing so, it necessarily reads into the unambiguous language of Article III an exception for recess appointees. I recognize, of course, that the converse is also true: to hold that the Recess Appointments Clause does not apply to Article III judges would in turn mean reading an exception into that clause. That, in the last analysis, is the choice I believe we should make.

Because I agree with the majority that the tension between these two contradictory provisions cannot be resolved solely by reference to the Constitution itself,2 I turn next--as we customarily do when the meaning of the Constitution is not clear from its text--to the contemporaneous writings that reflect the thinking of the Framers. Unfortunately, those sources also fail to tell us which of the two competing clauses the Framers intended to prevail over the other.

The contemporaneous writings of the Framers are virtually barren of any references to the Recess Appointments Clause. Although the record contains a few scattered references to the Clause, it was never explained, debated or discussed in any meaningful way. See Note, Historical Practice at 1766-73; Note, Recess Appointments at 126-130. Other than the text of Article II, Section 2 itself, all we know is that the Clause was proposed just ten days before the end of the Constitutional Convention and was adopted without debate. 2 Farrand, The Records of the Federal Convention of 1787 540 (1911); C. Rossiter, 1787: The Grand Convention 224 (1966).

Even The Federalist, normally a fruitful source of information on the thinking of the Framers, is almost silent on the subject of the President's power to make recess appointments. The Federalist, No. 76, quotes the Clause itself but fails to mention the judicial branch of government.3 Although The Federalist, No. 78, does state that the "mode of appointing the judges ... is the same" as that "fully discussed in the two last numbers," id. at 503, "the two last numbers" of The Federalist, Nos. 76 and 77, which were concerned with the appoin