Mass Recess Appointments the Future of the Federal Bench?

Great Debates
1

Does anyone else suspect the recess appointments of judges unable to gain confirmation from the Senate will continue to escalate? If the level of partisanship maintains the current fever pitch and the Senate holds firm to the 3/5 cloture rule then I think we might see an overall change in how judges are chosen. Presidents might make recess appointments of an entire slate of judges temporarily filling every seat on the bench. Judges might serve an apprenticeship as it were for a recess appointment or 2 before being confirmed to a seat for life. The Hill might dicker with the White House over the slate by offering a pro forma recess right at the beginning of the new Congress to maintain continuity of cases being herd by the temporary judges.

So what’s the straight dope? Are mass recess appointments the future of the federal judiciary? Likely or no, what are the benefits and drawbacks of this mode of selection of federal judges?

2

By the way, first we need to get the facts right about the current partisanship. And, the facts (as Albert Hunt has pointed out on the Wall Street Journal op-ed page) is that the Dems have blocked only a few of Bush’s most extremist appointments. By contrast, the Republicans blocked many more of Clinton’s appointments…and in some cases they were blocked because these judges were considered unacceptable by just a few of the most extreme conservatives like Jesse Helms. Here are the numbers from Hunt’s commentary (“Showtime in the Senate,” WSJ, p. A19, Nov 13, 2003):

Dems have blocked 6 Bush nominees.
During, Clinton’s term the Republicans blocked over 60 nominees.

The Republicans have been making a lot of hay out of the fact that the Dems have used filibusters which hadn’t been used previously (or not very often) in the context of judicial appointments. However, this just represents the fact that the Republicans didn’t have to filibuster when they were in control of the Senate…They just never gave the Clinton nominees a floor vote at all (which is even worse since at least a filibuster does require 41 Senators in opposition to the nominee whereas not scheduling a floor vote requires many fewer).

Here is a discussion from the liberal group “People for the American Way” about how things worked during the Clinton Administration.

3

That is why I think the Senate quorum rule is in no danger. Court packing is a neverending game and the Republicans don’t want to mess with a good thing. They will make a lot of noise now but when they are the minority again they hope to resume their own obstructionism. Maybe it’s my political outlook but I don’t doubt the Republicans will up the ante when it comes to recess appointments; it’s the Dems I wonder about. They are more ideologically diverse and so far haven’t been eager to match the escalation of the GOP.