Posts Tagged ‘Virginia Law Review’

The November 2011 issue of the Virginia Law Review contains an essay by Judge Diana Gribbon Motz of the United States Court of Appeals for the Fourth Circuit entitled The Constitutionality and Advisability of Recess Appointments of Article III Judges. The bottom line appears to be that recess appointments of Article III judges are constitutional but not advisable, although history shows that the arguments against inadvisability are probably overblown. I use “appears to be” as a qualifier because the essay all but affirmatively states that such appointments are constitutional.

Judge Motz begins the essay by noting that she became interested in the topic when President Clinton used a recess appointment to appoint Judge Roger Gregory to the Fourth Circuit.

Apart from the specific topic, the essay is interesting for what it reveals about Judge Motz’s approach to constitutional interpretation (albeit outside of a specifically judicial context): ” Writings surrounding the Constitutional Convention, such as the debates at the Convention, correspondence among the delegates, and contemporaneous writings, including the Federalist Papers—the legislative history, if you will—do provide some assistance.”

After concluding that “the revolutionary era and post-ratification writings are inconclusive as to whether the Recess Appointments  Clause was intended as a limited exception to Article III’s tenure and salary provisions,” Judge Motz turns to historical practice. Judge Motz’s sources in this section are interesting. As precedent for relying on historical practice, Judge Motz points out that the Supreme Court has done so in its Establishment Clause cases (including Marsh v. Chambers). Judge Motz relies heavily on a brief filed by the United States in the Ninth Circuit, and also relies on a Federalist Society publication.

Another interesting aspect of the essay is Judge Motz’s observation, in passing, about the material circumstances giving rise to legal scholarship: “In twentieth century, post-war America, our transportation and communication systems advanced at a dizzying rate, making it far more difficult to find any practical rationale for recess appointments. At the same time, colleges and law schools graduated persons in record numbers. During the booming economy, these graduates (and their teachers) took advantage of the opportunity not available during the depression or in war time to consider esoteric questions like the advisability of recess appointments of federal judges. These factors coalesced into a perfect storm when President Eisenhower made three recess appointments to the Supreme Court.”

As they say, read the whole thing.

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