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In the history of the United States, there have been approximately 32 unsuccessful recess appointments to United States federal courts. 22 individuals have been appointed to a United States federal court through a recess appointment who were thereafter rejected by the United States Senate when their name was formally submitted in nomination, either by a vote rejecting the nominee, or by the failure of the Senate to act on the nomination. These individuals served as federal judges, having full authority to hold office and issue rulings, until their rejection by the Senate. Five individuals were appointed but resigned either before the Senate voted on their nomination, or before a formal nomination was even submitted. Another five individuals were appointed but never assumed the office.
Constitutional background
Article II, Section 2, Clause 3 of the United States Constitution states:
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.
The president may fill critical federal executive and judicial branch vacancies unilaterally but temporarily when the Senate is in recess, and thus unavailable to provide advice and consent. Such appointments expire at the end of the next Senate session. To continue to serve thereafter, the appointee must be formally nominated by the president and confirmed by the Senate.
History of use
John Rutledge, appointed by George Washington was the first recess appointment to be rejected by the Senate, and the only recess appointee to the Supreme Court of the United States to be rejected. Washington appointed Rutledge on July 1, 1795, but because of Rutledge's political views and occasional mental illness, the Senate rejected his nomination December 15, 1795. Rutledge subsequently attempted suicide, and then resigned on December 28, 1795. The 4th United States Congress remained in session until June 1, 1796, so Rutledge could have remained on the Court until then, but chose not to.
Wallace McCamant, appointed by Calvin Coolidge on May 25, 1925, to the United States Court of Appeals for the Ninth Circuit, was the lone recess appointment to a United States Court of Appeals to be rejected by the Senate. The Senate rejected his nomination on March 17, 1926, and he resigned on May 2, 1926.
In total, fourteen presidents have had recess appointments rejected. William Howard Taft - who only made six recess appointments to the federal bench - experienced the largest number of rejected recess appointments, with three. Harry S. Truman - who made a record 38 such appointments - also had three recess appointments rejected, but one of those was later reappointed and confirmed. Taft had also used recess appointments to reappoint two judges whose recess appointments by Theodore Roosevelt had been rejected; both appointees resigned from their positions before their names were formally submitted into nomination.
Unsuccessful U.S. district court recess appointments
Recess appointees to the United States district courts not subsequently confirmed by the Senate are as follows:
| Judge | Court | Appointing President | Began active service | Ended active service | Notes |
|---|---|---|---|---|---|
| John Moses Cheney | S.D. Fla. | Taft | August 26, 1912 | March 3, 1913 | Congress adjourned without acting on the nomination. |
| William Creighton Jr. | D. Ohio | J. Q. Adams | November 1, 1828 | February 16, 1829 | Congress adjourned without acting on the nomination. |
| Hamilton G. Ewart | W.D.N.C. | McKinley | July 16, 1898 April 14, 1899 | March 4, 1899 June 7, 1900 | Received consecutive recess appointments to the same court; on both occasions, Congress adjourned without acting on the nomination. |
| John Feikens | E.D. Mich. | Eisenhower | October 13, 1960 | September 27, 1961 | Congress adjourned without acting on the nomination. Renominated to the same court by John F. Kennedy, but the nomination was withdrawn; again renominated by Richard Nixon, on October 7, 1970, to a different seat on the same court, and confirmed by the United States Senate on November 25, 1970, receiving his commission on December 1, 1970; took senior status on March 1, 1986. |
| Monroe Mark Friedman | N.D. Cal. | Truman | July 17, 1952 | July 24, 1953 | Nomination withdrawn prior to Senate action. |
| Roy Winfield Harper | W.D. Mo. | Truman | August 7, 1947 December 20, 1947 | December 19, 1947 June 22, 1948 | Received three consecutive recess appointments to the same court; on the first two occasions, Congress adjourned without acting on the nomination, but confirmed the third recess appointment; thereafter served as an active judge until January 5, 1971, and in senior status until his death on February 13, 1994. |
| Walter Heen | D. Haw. | Carter | January 1, 1981 | December 16, 1981 | Nomination withdrawn (by President Reagan) prior to Senate action. |
| J. Smith Henley | E.D. Ark. | Eisenhower | October 25, 1958 | September 11, 1959 | On August 18, 1959, before the recess appointment expired, Eisenhower re-nominated Henley to a different seat on the Eastern and Western District of Arkansas; confirmed by the Senate on September 2, 1959, and received his commission on September 8, 1959 - three days before the expiration of his recess appointment; thereafter served on the District Court until March 24, 1975, and was then elevated to the Eighth Circuit. |
| Clinton Woodbury Howard | W.D. Wash. | Taft | August 26, 1912 | March 3, 1913 | Congress adjourned without acting on the nomination. |
| Oscar Richard Hundley | D. Ala. | T. Roosevelt | April 9, 1907 May 30, 1908 | May 30, 1908 March 3, 1909 | Received three consecutive recess appointments to the same court, two from Roosevelt and the third from William Howard Taft; on the first two occasions, Congress adjourned without acting on the nomination; resigned after the third recess appointment, with his name not having formally been put into nomination. |
| George E. Q. Johnson | N.D. Ill. | Hoover | August 3, 1932 | March 3, 1933 | Formally rejected by the Senate. |
| William Douglas McHugh | D. Neb. | Cleveland | November 20, 1896 | February 1, 1897 | Nomination withdrawn prior to Senate action. |
| Philip C. Pendleton | W.D. Va. | J. Q. Adams | May 6, 1825 | July 29, 1825 | Resigned before he was formally nominated to the office, and was therefore never considered by the United States Senate. |
| Charles W. Pickering | Fifth Circuit | G. W. Bush | January 16, 2004 | December 8, 2004 | Formally nominated on January 7, 2003, but resigned prior to action by Congress on the nomination. |
| Milton D. Purdy | D. Minn. | T. Roosevelt | July 6, 1908 | March 3, 1909 | Congress adjourned without acting on the nomination; received a second recess appointment to the same seat from President William Howard Taft on March 6, 1909, but resigned on May 1, 1909, with his name not having formally been put into nomination. |
| David Rabinovitz | W.D. Wis. | L. B. Johnson | January 7, 1964 | October 3, 1964 | Congress adjourned without acting on the nomination. |
| Floyd H. Roberts | W.D. Va. | F. Roosevelt | July 6, 1938 | February 6, 1939 | Formally rejected by the Senate. |
| Richard Elihu Sloan | D. Ariz. | Taft | December 3, 1912 | March 3, 1913 | Congress adjourned without acting on the nomination. |
| Carroll O. Switzer | S.D. Iowa | Truman | October 21, 1949 | August 9, 1950 | Formally rejected by the Senate. |
| Benjamin Tappan | D. Ohio | Jackson | October 12, 1833 | May 29, 1834 | Formally rejected by the Senate. |
| William Josiah Tilson | M.D. Ga. | Coolidge | June 6, 1926 | March 4, 1927 | Received a second recess appointment to a different seat on the same court on March 5, 1927, but resigned on March 19, 1928, with his name not having formally been put into nomination. |
| Joel C. C. Winch | E.D. Tex. | Grant | October 11, 1870 | March 3, 1871 | Congress adjourned without acting on the nomination. |
Notes
- All information on the names, terms of service, and details of appointment of federal judges is derived from the Biographical Directory of Federal Judges, a public-domain publication of the Federal Judicial Center.
- Graves, Scott E.; Howard, Robert M. (September 2010). "Ignoring Advice and Consent? The Uses of Judicial Recess Appointments". Political Research Quarterly. 63 (3): 640–653. doi:10.1177/1065912909333129. JSTOR 25747964. S2CID 154534476. Retrieved June 11, 2022.
- ""McCamant, Wallace - Federal Judicial Center"". www.fjc.gov. Retrieved 2019-11-20.
References
- Federal Judicial Center
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In the history of the United States there have been approximately 32 unsuccessful recess appointments to United States federal courts 22 individuals have been appointed to a United States federal court through a recess appointment who were thereafter rejected by the United States Senate when their name was formally submitted in nomination either by a vote rejecting the nominee or by the failure of the Senate to act on the nomination These individuals served as federal judges having full authority to hold office and issue rulings until their rejection by the Senate Five individuals were appointed but resigned either before the Senate voted on their nomination or before a formal nomination was even submitted Another five individuals were appointed but never assumed the office Constitutional backgroundArticle II Section 2 Clause 3 of the United States Constitution states 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 The president may fill critical federal executive and judicial branch vacancies unilaterally but temporarily when the Senate is in recess and thus unavailable to provide advice and consent Such appointments expire at the end of the next Senate session To continue to serve thereafter the appointee must be formally nominated by the president and confirmed by the Senate History of useJohn Rutledge appointed by George Washington was the first recess appointment to be rejected by the Senate and the only recess appointee to the Supreme Court of the United States to be rejected Washington appointed Rutledge on July 1 1795 but because of Rutledge s political views and occasional mental illness the Senate rejected his nomination December 15 1795 Rutledge subsequently attempted suicide and then resigned on December 28 1795 The 4th United States Congress remained in session until June 1 1796 so Rutledge could have remained on the Court until then but chose not to Wallace McCamant appointed by Calvin Coolidge on May 25 1925 to the United States Court of Appeals for the Ninth Circuit was the lone recess appointment to a United States Court of Appeals to be rejected by the Senate The Senate rejected his nomination on March 17 1926 and he resigned on May 2 1926 In total fourteen presidents have had recess appointments rejected William Howard Taft who only made six recess appointments to the federal bench experienced the largest number of rejected recess appointments with three Harry S Truman who made a record 38 such appointments also had three recess appointments rejected but one of those was later reappointed and confirmed Taft had also used recess appointments to reappoint two judges whose recess appointments by Theodore Roosevelt had been rejected both appointees resigned from their positions before their names were formally submitted into nomination Unsuccessful U S district court recess appointmentsRecess appointees to the United States district courts not subsequently confirmed by the Senate are as follows Judge Court Appointing President Began active service Ended active service Notes John Moses Cheney S D Fla Taft 19120826 August 26 1912 19130303 March 3 1913 Congress adjourned without acting on the nomination William Creighton Jr D Ohio J Q Adams 18281101 November 1 1828 18290216 February 16 1829 Congress adjourned without acting on the nomination Hamilton G Ewart W D N C McKinley 18980716 July 16 1898 April 14 1899 19000607 March 4 1899 June 7 1900 Received consecutive recess appointments to the same court on both occasions Congress adjourned without acting on the nomination John Feikens E D Mich Eisenhower 19601013 October 13 1960 19610927 September 27 1961 Congress adjourned without acting on the nomination Renominated to the same court by John F Kennedy but the nomination was withdrawn again renominated by Richard Nixon on October 7 1970 to a different seat on the same court and confirmed by the United States Senate on November 25 1970 receiving his commission on December 1 1970 took senior status on March 1 1986 Monroe Mark Friedman N D Cal Truman 19530717 July 17 1952 19530724 July 24 1953 Nomination withdrawn prior to Senate action Roy Winfield Harper W D Mo Truman 19470807 August 7 1947 December 20 1947 19480622 December 19 1947 June 22 1948 Received three consecutive recess appointments to the same court on the first two occasions Congress adjourned without acting on the nomination but confirmed the third recess appointment thereafter served as an active judge until January 5 1971 and in senior status until his death on February 13 1994 Walter Heen D Haw Carter 19810101 January 1 1981 19811216 December 16 1981 Nomination withdrawn by President Reagan prior to Senate action J Smith Henley E D Ark Eisenhower 19581025 October 25 1958 19590911 September 11 1959 On August 18 1959 before the recess appointment expired Eisenhower re nominated Henley to a different seat on the Eastern and Western District of Arkansas confirmed by the Senate on September 2 1959 and received his commission on September 8 1959 three days before the expiration of his recess appointment thereafter served on the District Court until March 24 1975 and was then elevated to the Eighth Circuit Clinton Woodbury Howard W D Wash Taft 19120826 August 26 1912 19130303 March 3 1913 Congress adjourned without acting on the nomination Oscar Richard Hundley D Ala T Roosevelt 19070409 April 9 1907 May 30 1908 19090303 May 30 1908 March 3 1909 Received three consecutive recess appointments to the same court two from Roosevelt and the third from William Howard Taft on the first two occasions Congress adjourned without acting on the nomination resigned after the third recess appointment with his name not having formally been put into nomination George E Q Johnson N D Ill Hoover 19320803 August 3 1932 19330303 March 3 1933 Formally rejected by the Senate William Douglas McHugh D Neb Cleveland 18961120 November 20 1896 18970201 February 1 1897 Nomination withdrawn prior to Senate action Philip C Pendleton W D Va J Q Adams 18250506 May 6 1825 18250729 July 29 1825 Resigned before he was formally nominated to the office and was therefore never considered by the United States Senate Charles W Pickering Fifth Circuit G W Bush 20040116 January 16 2004 20041208 December 8 2004 Formally nominated on January 7 2003 but resigned prior to action by Congress on the nomination Milton D Purdy D Minn T Roosevelt 19080706 July 6 1908 19090303 March 3 1909 Congress adjourned without acting on the nomination received a second recess appointment to the same seat from President William Howard Taft on March 6 1909 but resigned on May 1 1909 with his name not having formally been put into nomination David Rabinovitz W D Wis L B Johnson 19640107 January 7 1964 19641003 October 3 1964 Congress adjourned without acting on the nomination Floyd H Roberts W D Va F Roosevelt 19380706 July 6 1938 19390206 February 6 1939 Formally rejected by the Senate Richard Elihu Sloan D Ariz Taft 19121203 December 3 1912 19130303 March 3 1913 Congress adjourned without acting on the nomination Carroll O Switzer S D Iowa Truman 19491021 October 21 1949 19500809 August 9 1950 Formally rejected by the Senate Benjamin Tappan D Ohio Jackson 18331012 October 12 1833 18340529 May 29 1834 Formally rejected by the Senate William Josiah Tilson M D Ga Coolidge 19260606 June 6 1926 19270304 March 4 1927 Received a second recess appointment to a different seat on the same court on March 5 1927 but resigned on March 19 1928 with his name not having formally been put into nomination Joel C C Winch E D Tex Grant 18701011 October 11 1870 18710303 March 3 1871 Congress adjourned without acting on the nomination NotesAll information on the names terms of service and details of appointment of federal judges is derived from the Biographical Directory of Federal Judges a public domain publication of the Federal Judicial Center Graves Scott E Howard Robert M September 2010 Ignoring Advice and Consent The Uses of Judicial Recess Appointments Political Research Quarterly 63 3 640 653 doi 10 1177 1065912909333129 JSTOR 25747964 S2CID 154534476 Retrieved June 11 2022 McCamant Wallace Federal Judicial Center www fjc gov Retrieved 2019 11 20 ReferencesFederal Judicial Center