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Unpublished Paper
Judicial Recess Appointments in the Modern Era: Majority Preferences for an Anti Majoritarian Institution
ExpressO (2011)
  • Robert M Howard, Georgia State University

The purpose of the recess appointment clause is clear – it allows the executive to keep the operations of government running even when the Senate is not in session and unable to confirm presidential appointees. We want to determine why this practice, common several decades ago, virtually disappeared in the 1960s and why it reappeared in the form of three controversial appointments to the Circuit Courts of Appeals—one by outgoing President Clinton in 2000 and two by President Bush in the congressional session preceding his reelection in 2004. We analyze every vacancy on the federal Courts of Appeals in the post-war era, examining the incidence and timing of judicial recess appointments. By focusing solely on modern presidencies we are able to use comparable institutional measures of ideology not available in examinations of executive-legislative interactions in the 18th and 19th centuries. Our model assesses the likelihood of a recess appointment measured in the time it takes to fill a judicial vacancy and our results reveal what factors increase the likelihood of a recess appointment conditional on the vacancy not being filled by the conventional confirmation process. We argue that the decline of judicial recess appointments is the result of both shorter Senate recesses and the prevalence of divided government during the latter half of the twentieth century. Given the prospect of unified government we argue that there is a significant probability that greater use will be made of the recess appointment power for judicial nominees.

  • Judicial Appointments,
  • judicial decisions
Publication Date
February 24, 2011
Citation Information
Robert M Howard. "Judicial Recess Appointments in the Modern Era: Majority Preferences for an Anti Majoritarian Institution" ExpressO (2011)
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