Adopt A Box O’ Docs Part IV: Roberts On Judicial Recess Appointments
http://www.reagan.utexas.edu/roberts/
http://www.reagan.utexas.edu/roberts/Box47JGRRecessAppointments6.pdf
This particular box cites a great deal of history by John F. Cooney, and is directed to Roberts. It covers the history of recess appointments made by Presidents Truman through Reagan, up to the date of the letter. But the main crux of this issue—that being of judicial nominees receiving a recess appointment—does not reach its point until the final two pages of the pdf. Throughout the documents, Cooney cites the power of recess appointing through the Federalist Papers, and court cases addressing the issue.
However, as Marcie stated, the issue is not over recess appointments, in general. It regards the recess appointments of judges to the federal bench. What Roberts contends is that it’s not a wise practice to utilize, but with things reaching a head in 1986, and the guaranteed departure of the president in 1989, there existed a backlog of vacancies on the federal bench, and it might be prudent to utilize that power.
Roberts cites a case, United States v. Woodley, which discussed the act of recess appointing judges. Peter Rusthoven is cited in the final two pages by Roberts regarding such appointments. Roberts agrees that the issue should be revisited, and even cites an en banc decision by the Ninth Circuit Court (that being Woodley), which recognized such a recess appointment.
Roberts specifically states that he doesn’t advocate such a move. But he makes a compelling argument encouraging its use in—to use the Gang of 14 language—"extraordinary circumstances." That, as he states, is as follows: "A number of factors counsel reviewing our policy; the recent Ninth Circuit en banc decision, clearly recognizing the power to make judicial recess appointments; the growing backlog of judicial nominations awaiting Senate confirmation, which might be accelerated by a serious threat to use the recess appointment power; the prospect of a hostile Senate and Judiciary Committee after the 1986 elections; and the prospect of the president leaving office in 1989 with a large number of unfilled vacancies on the bench."
He is citing the reasons for its use if it becomes necessary. To quote Mr. Marcuse from the previous of ours regarding box #5 on recess appointments, "what must be done, must be done." And he does cite a number of reasons for making such a move. A couple of them sound eerily familiar today, do they not? A hostile Senate and Judiciary Committee. The impending mid-term elections. And this is where Thomas and I believe the largest point of contention may arise for Roberts on this particular issue.
With times being the way they are now, and with the history he was involved with, at the time, the Democrats may attempt to twist the meaning of this particular memo as he endorses the move. He didn’t endorse anything in this memo, other than a possible action at the time in question. This is 2005, not 1985. We’re twenty years removed from this time. Does he still believe the president has the power to make recess appointments? Yes. Does he endorse it for the judiciary? Not in so many words, but he defends it, and does so by citing the two cases involving the point.
United States v. Woodley and United States v. Allocco contended that two jurists—both recess appointments—had no right to render decisions or hear cases based on that fact. Roberts does a superb job of explaining that, regardless of the post—be it Cabinet Member, jurist, or otherwise required by a Senate confirmation process—a recess appointment stays until either the president revokes the post (only if he can), or their term expires.
Roberts advocates nothing in this box. The contention from the Democrats, as stated above, will come in their interpretation of the letter he penned. He doesn’t endorse the move, nor does he condemn it. He simply—again—reinforces the president’s power to make recess appointments, and makes sure that everyone understands it includes judicial officers to the federal bench.
The Bunny & Publius II
http://www.reagan.utexas.edu/roberts/
http://www.reagan.utexas.edu/roberts/Box47JGRRecessAppointments6.pdf
This particular box cites a great deal of history by John F. Cooney, and is directed to Roberts. It covers the history of recess appointments made by Presidents Truman through Reagan, up to the date of the letter. But the main crux of this issue—that being of judicial nominees receiving a recess appointment—does not reach its point until the final two pages of the pdf. Throughout the documents, Cooney cites the power of recess appointing through the Federalist Papers, and court cases addressing the issue.
However, as Marcie stated, the issue is not over recess appointments, in general. It regards the recess appointments of judges to the federal bench. What Roberts contends is that it’s not a wise practice to utilize, but with things reaching a head in 1986, and the guaranteed departure of the president in 1989, there existed a backlog of vacancies on the federal bench, and it might be prudent to utilize that power.
Roberts cites a case, United States v. Woodley, which discussed the act of recess appointing judges. Peter Rusthoven is cited in the final two pages by Roberts regarding such appointments. Roberts agrees that the issue should be revisited, and even cites an en banc decision by the Ninth Circuit Court (that being Woodley), which recognized such a recess appointment.
Roberts specifically states that he doesn’t advocate such a move. But he makes a compelling argument encouraging its use in—to use the Gang of 14 language—"extraordinary circumstances." That, as he states, is as follows: "A number of factors counsel reviewing our policy; the recent Ninth Circuit en banc decision, clearly recognizing the power to make judicial recess appointments; the growing backlog of judicial nominations awaiting Senate confirmation, which might be accelerated by a serious threat to use the recess appointment power; the prospect of a hostile Senate and Judiciary Committee after the 1986 elections; and the prospect of the president leaving office in 1989 with a large number of unfilled vacancies on the bench."
He is citing the reasons for its use if it becomes necessary. To quote Mr. Marcuse from the previous of ours regarding box #5 on recess appointments, "what must be done, must be done." And he does cite a number of reasons for making such a move. A couple of them sound eerily familiar today, do they not? A hostile Senate and Judiciary Committee. The impending mid-term elections. And this is where Thomas and I believe the largest point of contention may arise for Roberts on this particular issue.
With times being the way they are now, and with the history he was involved with, at the time, the Democrats may attempt to twist the meaning of this particular memo as he endorses the move. He didn’t endorse anything in this memo, other than a possible action at the time in question. This is 2005, not 1985. We’re twenty years removed from this time. Does he still believe the president has the power to make recess appointments? Yes. Does he endorse it for the judiciary? Not in so many words, but he defends it, and does so by citing the two cases involving the point.
United States v. Woodley and United States v. Allocco contended that two jurists—both recess appointments—had no right to render decisions or hear cases based on that fact. Roberts does a superb job of explaining that, regardless of the post—be it Cabinet Member, jurist, or otherwise required by a Senate confirmation process—a recess appointment stays until either the president revokes the post (only if he can), or their term expires.
Roberts advocates nothing in this box. The contention from the Democrats, as stated above, will come in their interpretation of the letter he penned. He doesn’t endorse the move, nor does he condemn it. He simply—again—reinforces the president’s power to make recess appointments, and makes sure that everyone understands it includes judicial officers to the federal bench.
The Bunny & Publius II
posted by Syd And Vaughn | 8:11 PM
1 Comments:
The two of you have been busy little beavers over the last couple of hours. I am having a problem keeping up with you two. ;)
I believe the point you're trying to convey is that Roberts doesn't condemn the powers of the president when it comes to his ability to recess appoint people to the positions that are needed at the time, during a time of recess for the Senate.
The last three posts (all from today) contend that Roberts accepts this power, as a federal judge should, and aside from the basic restrictions outlined in the Constitution (excellent job, Publius) the president has this right regardless.
Roberts is not going to challenge the presidential powers in his tenure on the high court. He supports it. It is inherent in what he has written. This is not an argument made by the likes of the Left that "he was writing on behalf of the White House." No, this is what he believes as a more-than-qualified jurist being appointed to the nation's highest court.
He will be more than consistent in this field, and I peruse the links under Radio-Blogger I see that he is consistent in many respects that the Left will try to exploit. You have tried to point to the areas of concern that the Left will have, and as Publius appropriately pointed out, they are weak and feeble. The Left has nothing to stand on should they choose to pick a fight over this subject.
Mistress Pundit
Post a Comment
<< Home