Legal Commentary

Recess Appointments to Art. III Courts, 1789?2004

By John Elwood

When I was in the Office of the Solicitor General, I was the Assistant who worked on the (many) briefs in opposition to cert petitions challenging the recess appointments of Judges William Pryor and Charles Pickering in 2004. 

In connection with those opps, Bristow Fellow Ileana Ciobanu and I compiled this list using DOJ and Federal Judicial Center records of all the judges who had been given recess appointments to Article III courts.  That list, which was appended to the government?s brief in oppostion in United States v. Franklin, 04?5858, is more complete and accurate than the one appended to the government?s earlier brief in opposition in United States v. Miller, 04?38, but because Franklin was an in forma pauperis case, and the OSG website doesn?t host IFP briefs, it previously wasn?t available on the Internet.  This is the most comprehensive list of which I am aware, so I thought it?d be worthwhile to host it (and link it) here on the Conspiracy.  (If you have links to any briefs filed on the other side of the issue, email them to me or link them in the comment thread for one-stop shopping.)

Without endorsing the practice?I hope that I have written my last words on the merits of this subject?it?s interesting to see the prominent jurists who received recess appointments over the years, including Thurgood Marshall (to the Second Circuit), Skelly Wright (to the E.D. La.), Leon Higginbotham (to the E.D. Pa.), Spottswood Robinson, Griffin Bell, David Bazelon, Augustus Hand, Justice Brennan, and Elmer J. Schnackenberg.  OK, I had never heard of Schnackenberg either.

Full post as published by The Volokh Conspiracy on April 26, 2010 (boomark / email).