Notable Recess Appointments

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Presidents have taken advantage of the constitutional power to make recess appointments since the first administration. According to a history of judicial appointments written by the Congressional Research Service, President George Washington appointed [PDF] 12 federal court judges using the recess clause between 1789 and 1799, 11 of which were later confirmed by the US Senate. President Washington used the recess clause to appoint John Rutledge Chief Justice of the US Supreme Court. A former Associate Justice of the Supreme Court, Rutledge was an outspoken critic of the recently passed Jay's Treaty. When Rutledge was formally nominated for the Chief Justice position, the Senate refused to confirm him. Rutledge, whose sanity was already under question, attempted to kill himself and resigned the post.

Contemporary presidential administrations have used recess appointments to a varying degree. Mother Jones magazine calculated that President Reagan "...made 240 recess appointments, President George H. W. Bush made 77 recess appointments, President Bill Clinton made 140 recess appointments, and George W. Bush made 171." As of June 11, 2013, President Obama has made [PDF] 32 recess appointments.

President George W. Bush's controversial recess appointment of John Bolton as ambassador to the United Nations (UN) in August 2005 "...drew sharp protests from Democrats," according to the Washington Post. Many Democrats assumed that President Bush would not use the recess clause to fill such a high level position, although the administration stated that there was nothing wrong with the appointment. Bolton's recess appointment was temporary, and knowing that he would not be permanently approved by the Senate when the position was filled in December 2006, he resigned.

In January 2012, President Obama used the recess clause to appoint three members to the National Labor Relations Board (NLRB) and the Director of the Consumer Financial Protection Bureau. However, because the Senate was technically in a "pro forma" session and not in recess, the appointments came under Republican scrutiny. The appointments were invalidated in January 2013 by the US Court of Appeals for the District of Columbia Circuit and threw into question the validity of hundreds of NLRB decisions. The NLRB petitioned the Supreme Court in March 2013 to uphold the recess appointments. The Supreme Court agreed, in June 2013, to review the decision.

 

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