Appeals Court Affirms Full Powers of Interim Judges

A presidential appointee temporarily sitting on the federal court bench may exercise full judicial powers, the U.S. 9th Circuit Court of Appeals has ruled.

The 49-page decision released Monday upheld the 200-year-old practice that allows the President to appoint federal judges while the Senate--which must confirm such appointments--is in recess. In such cases, the Senate votes on the appointments when it resumes meeting.

The historic presidential practice has not been seriously challenged in the past.

But in a decision in December, 1983, a three-judge panel of the U.S. 9th Circuit Court ruled that Presidents no longer can use the mechanism to appoint judges.

Circuit Judge William A. Norris, in writing that panel’s ruling, said a potential threat to judicial independence existed.

“A judge receiving his commission under the Recess Appointments Clause (part of the U.S. Constitution) may be called upon to make politically charged decisions while his nomination awaits approval by popularly elected officials,” Norris wrote.

The panel’s ruling was appealed to an en banc 11-member panel of 9th Circuit Court judges, which overturned the three-member panel’s ruling by a 7-4 vote announced Monday.

Writing for the majority, Judge Robert R. Beezer said the language of the Recess Appointments Clause was explicitly clear: “. . . The President has the power to fill all vacancies during the recess of the Senate.”

Norris, writing for the four dissenting judges, said the language of the clause should not prevail over Article III of the U.S. Constitution, which covers the President’s appointment powers. “The principles of separation of power and judicial independence that animate Article III heavily outweigh the concerns of expediency and efficiency that underlie the Recess Appointment Clause,” Norris wrote.

The ruling came in the case of Janet Woodley, who challenged her federal court conviction on heroin possession in Hawaii, because the judge, who was nominated to the bench in February of 1980 by then-President Jimmy Carter, had not been confirmed by the Senate.