Miller v. United States - Opposition

No. 04-38

In the Supreme Court of the United States

SHANNON MILLER, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

PAUL D. CLEMENT
Acting Solicitor General
Counsel of Record
CHRISTOPHER A. WRAY
Assistant Attorney General
JEFFREY P. SINGDAHLSEN
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

1. Whether the Recess Appointments Clause, U.S. Const. Art. II, § 2, Cl. 3, permits the President to appoint judges to Article III courts.

2. Whether the Recess Appointments Clause authorizes the President to fill vacancies during recesses that occur during a session of Congress, or only permits appointments during recesses occurring between sessions of Congress.

In the Supreme Court of the United States

No. 04-38

SHANNON MILLER, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-5a) is not published in the Federal Reporter, but it is available at 2004 WL 1206955 and the judgment is noted at 104 Fed. Appx. 150 (Table). The order of the district court (Pet. App. 10a-15a) is unreported. The report and recommendation of the magistrate judge (Pet. App. 16a-33a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on April 28, 2004. The petition for a writ of certiorari was filed on June 24, 2004. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court for the Southern District of Florida, petitioner was convicted of one count of possessing cocaine with intent to distribute it, in violation of 21 U.S.C. 841. Pet. App. 16a. Petitioner was sentenced to 210 months of imprisonment, to be followed by five years of supervised release. Id. at 17a. The court of appeals affirmed. Ibid. On October 3, 2002, petitioner filed a motion under 28 U.S.C. 2255 to vacate, set aside, or correct his sentence. Pet. App. 1a, 10a. The district court denied the motion. Id. at 10a-15a, 16a-33a. The court of appeals affirmed. Id. at 1a-5a.

1. On March 8, 1994, petitioner was traveling on a Greyhound bus in Florida. At a stop, police officers performing drug interdiction inspections asked to search petitioner's luggage and informed him that he was free to decline their request. 94-5013 Gov't C.A. Br. 4-6. Petitioner consented to the search of his bag. Inside, the officers found five baggies containing almost 600 grams of crack cocaine. After arresting petitioner, the officers found five bags of marijuana in petitioner's shirt pocket. Id. at 6-8.

2. On March 29, 1994, a federal grand jury in the Southern District of Florida indicted petitioner on one count of possessing cocaine with intent to distribute it, in violation of 21 U.S.C. 841. Pet. App. 16a. After a trial, petitioner was convicted and sentenced. Id. at 17a. On July 24, 1996, the court of appeals affirmed petitioner's conviction and sentence. Ibid.

3. On October 3, 2002, more than six years after the court of appeals affirmed his conviction, petitioner filed a motion to correct his sentence under 28 U.S.C. 2255 raising three claims. Pet. App. 16a, 18a. First, petitioner argued that he was denied the effective assistance of counsel because his attorney had allegedly failed to tell him that the prosecutor had said that the government would not recommend a reduction in sentence based on future cooperation efforts unless petitioner pleaded guilty. Id. at 17a-18a. Second, petitioner claimed that the government violated the Due Process Clause by not moving to reduce his sentence under Federal Rule of Criminal Procedure 35 because of purported post-conviction assistance to the government. Id. at 18a-19a. Third, petitioner claimed that he was denied the effective assistance of counsel because neither the government nor his attorney had informed the sentencing court that the government allegedly had foreclosed giving petitioner credit for future cooperation. Id. at 13a, 19a.

4. The district court, adopting the magistrate judge's report and recommendation, Pet. App. 16a-33a, denied the motion. Id. at 10a-15a. Both the magistrate judge and the district court questioned whether petitioner had filed his motion within one year of when he could have, with due diligence, discovered the facts underlying his claims, as required by Section 2255. See id. at 11a, 25a. The court declined to resolve the statute of limitations issue, however, because it concluded that petitioner's claims lacked merit. Id. at 11a. The court first concluded that petitioner could not establish prejudice from his attorney's claimed failure to report the government's alleged refusal to credit his cooperation, because the record indicated that petitioner had expressed no interest in plea negotiations and had stated that he wished to go to trial to preserve his challenge to the search of his luggage. Id. at 12a, 27a-29a. The district court also found petitioner's due process claim to be without merit, noting that the government had discretion whether to file a Rule 35 motion, id. at 12a-13a, and that petitioner had not claimed that the government had made or breached any promise regarding his cooperation. Id. at 13a, 30a. Finally, the district court held that neither petitioner's counsel nor the government had any duty to inform the sentencing court of the government's purported refusal to provide sentencing credit for future cooperation, id. at 13a-14a, 31a-32a, and that no misrepresentations had been made about the likelihood of a future Rule 35 filing. Id. at 13-14a, 32a.

5. The court of appeals granted petitioner's motion for a certificate of appealability on two limited issues (whether petitioner was entitled to an evidentiary hearing about whether his lawyer had failed to disclose the prosecutor's alleged statement, and whether counsel had adequately advised petitioner and the sentencing court of the government's alleged refusal to recommend a reduction in sentence based on petitioner's future cooperation unless he pleaded guilty). Pet. App. 8a.

After briefing, the case was assigned to a panel composed of Circuit Judges Joel F. Dubina, Stanley Marcus, and William H. Pryor Jr. On April 28, 2004, the court affirmed in an unpublished per curiam opinion. The court held that petitioner was not entitled to an evidentiary hearing because, even assuming the facts alleged, he could not demonstrate prejudice. Pet. App. 4a. The court also held that petitioner had failed to show that there was any obligation to inform the sentencing court of the government's purported statement or that, had the court been so informed, there was any legal basis on which the court could have reduced petitioner's sentence. Id. at 4a-5a. Petitioner failed to make any motion to either the panel or the en banc court challenging the composition of the panel.

6. On April 9, 2003, the President nominated William H. Pryor Jr. to fill a vacancy on the United States Court of Appeals for the Eleventh Circuit. 149 Cong. Rec. S5101 (daily ed. Apr. 9, 2003). On July 23, 2003, the Senate Judiciary Committee favorably reported his nomination to the full Senate. See Judiciary Committee Report on Nominees 14 (last modified Sept. 20, 2004) <http://judiciary.senate.gov/noms/108/committee _report.pdf>. On February 20, 2004, while the Senate was in recess, see H.R. Con. Res. 361, 108th Cong., 2d Sess. (2004); see also 150 Cong. Rec. S1414 (daily ed. Feb. 12, 2004) (statement of Sen. Frist), the President appointed Judge Pryor to the court of appeals pursuant to the Recess Appointments Clause of the Constitution, Art. II, § 2, Cl. 3. Statement on Appointment of William H. Pryor Jr. (Feb. 20, 2004) <http://www. whitehouse.gov/news/releases/2004/02/print/20040220-6. html>. Judge Pryor was sworn in the same day.

ARGUMENT

Petitioner contends, for the first time in any court, that the presence of Judge Pryor on the panel that decided his appeal created a "'plain defect in the composition of the panel' * * * , which can be corrected only by 'fresh consideration of [the] appeal[] by a properly constituted [appellate] panel.'" Pet. 17 (quoting Nguyen v. United States, 539 U.S. 69, 81, 83 (2003)). He contends that Judge Pryor's appointment was in violation of both Article III of the Constitution and the Recess Appointments Clause, which authorizes the President to "fill up all Vacancies" during a "Recess of the Senate." U.S. Const. Art. II, § 2, Cl. 3. Petitioner claims (Pet. 8-12; see also Kennedy Amicus Br. 5-14) that the Recess Appointments Clause permits the President to make appointments only during recesses between sessions of Congress ("inter-session recesses"), and does not permit the making of appointments during recesses within a session of Congress ("intra-session recesses"). Petitioner also claims (Pet. 13-18; see also Kennedy Amicus Br. 14-20) that the President may not use the recess appointment power to appoint judges to Article III courts. The President's power to appoint Article III judges during recesses of the Senate (including intra-session recesses) is supported by the text, history, and purpose of the Recess Appointments Clause and centuries of unbroken practice. The issues have not divided the lower courts, see Pet. 7; Kennedy Amicus Br. 17, and further review is not warranted.

1. Review should be denied because the constitutionality of intra-session judicial recess appointments was not raised or passed upon below. "It is only in exceptional cases coming here from the federal courts that questions not pressed or passed upon below are reviewed." Youakim v. Miller, 425 U.S. 231, 234 (1976) (per curiam); accord Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 8 (1993). The fact that petitioner states (Pet. 5) that he did not learn that Judge Pryor would be on the panel until after his case was decided may explain his failure to raise the claim before the court's decision below. Petitioner could, however, have raised the issue in seeking panel rehearing or rehearing en banc once Judge Pryor's participation came to light. In any event, even if petitioner had done all he could to preserve the claim, review nevertheless should be denied because the "pressed or passed upon below" rule serves to improve the quality of decisionmaking by ensuring that this Court "ha[s] the benefit of a decision analyzing the application of [constitutional principles] to the facts of petitioner's case." Wills v. Texas, 511 U.S. 1097, 1098 (1994) (O'Connor, J., concurring in denial of certiorari).

Petitioner contends (Pet. 16) that this Court need not wait for a lower-court decision addressing the constitutionality of intra-session judicial recess appointments because the subject has been discussed "in Attorney General opinions, academic articles, and reports by the Congressional Research Service." Ibid.; see also Kennedy Amicus Br. 4. Petitioner further contends (Pet. 16; see also Kennedy Amicus Br. 3-5) that "the benefits of waiting for a lower court decision are far outweighed by the costs," because the number of potentially affected cases will increase as Judge Pryor continues to hear cases. Those facts do not justify review in this case. While the CRS reports collect valuable historical information (such as the number and identity of recess appointees), they do not purport to undertake an exhaustive analysis of the legal issues. And consideration by scholars is not a substitute for resolution of concrete controversies by courts.

As for the number of cases affected, review at this time would be particularly inappropriate because the Eleventh Circuit is soon expected to address the questions raised by the petition. In Evans v. City of Zebulon, 351 F.3d 485 (11th Cir. 2003), reh'g en banc granted, 364 F.3d 1298 (11th Cir. 2004), which raises Fourth Amendment and qualified immunity issues, a party has challenged the constitutionality of Judge Pryor's appointment to the Eleventh Circuit and his service on the en banc court that will hear reargument in that case. The case is scheduled for argument en banc on October 26, 2004. The United States has intervened in the litigation for the purpose of defending the constitutionality of Judge Pryor's appointment, and Senator Kennedy has filed an amicus brief (and a reply brief) arguing that Judge Pryor's recess appointment was invalid. Briefing is now complete. The Eleventh Circuit has indicated that it does not intend to have oral argument on the validity of Judge Pryor's appointment, see Stephens v. Evans, No. 02-16424, order at 2 (July 19, 2004) ("For now at least, expect no oral argument on this issue."), suggesting that the court of appeals might decide the issue in advance of the October 26 en banc argument on the Fourth Amendment and qualified immunity issues. Particularly in light of that possibility, review by this Court in advance of consideration of the issue by the court of appeals is unwarranted.

Review is not now warranted for two other reasons. First, the issue has not divided the lower courts. See generally Sup. Ct. R. 10. As petitioner and amicus concede (Pet. 7; Kennedy Amicus Br. 17), the courts that have considered the constitutionality of judicial recess appointments uniformly have upheld the practice, see United States v. Woodley, 751 F.2d 1008 (9th Cir. 1985) (en banc), cert. denied, 475 U.S. 1048 (1986); United States v. Allocco, 305 F.2d 704 (2d Cir. 1962), cert. denied, 371 U.S. 964 (1963), and no court of appeals has addressed the constitutionality of intra-session recess appointments. Second, contrary to the claim of amicus (Br. 3) that the Executive Branch has made "ever-expanding" and "regular" use of the recess appointment power to make judicial appointments, only four judges have been the subject of recess appointments in the last forty years. See App. 26a, infra. That is an extremely modest number by historical standards. For example, Presidents Washington, John Adams, Jefferson, Madison, and Monroe together made 28 known recess appointments to Article III courts, see id. at 23a-25a, infra, and Presidents Truman, Eisenhower, and Kennedy together made 89. See id. at 3a-9a.

2. The Appointments Clause of the Constitution provides that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States." U.S. Const. Art. II, § 2, Cl. 2. The Recess Appointments Clause immediately follows and confers on the President the "Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." Id. Art. II, § 2, Cl. 3. Although there was little discussion of the Recess Appointments Clause at the Constitutional Convention, Alexander Hamilton described it in The Federalist as providing a "supplement" to the President's appointment power, establishing an "auxiliary method of appointment, in cases to which the general method was inadequate." The Federalist No. 67, at 409 (Clinton Rossiter ed., 1961). He further explained that the Clause was needed because "it would have been improper to oblige [the Senate] to be continually in session for the appointment of officers," and it "might be necessary for the public service to fill [vacancies] without delay." Id. at 410. Justice Story confirmed that the Clause was intended to achieve "convenience, promptitude of action, and general security," and to avoid the need "that the senate should be perpetually in session." 3 Joseph Story, Commentaries on the Constitution of the United States § 804, at 574 (Ronald D. Rotunda & John E. Nowark eds., 1987).

In permitting the President to "fill up all Vacancies" during "the Recess" of the Senate, the Recess Appointments Clause by its terms encompasses all vacancies and all recesses (with the single arguable exception, discussed below, of de minimis breaks of three days or less, see U.S. Const. Art. I, § 5, Cl. 4). Petitioner and amicus Senator Kennedy propose to restrict the Clause to only some recesses (inter-session as opposed to intra-session recesses) and to only some vacancies (of executive as opposed to judicial offices). Those restrictions are unfounded.

a. Petitioner cites nothing in the text of the Constitution to support his claim that the Recess Appointments Clause does not apply to Article III judges (Pet. 13-16; see also Kennedy Amicus Br. 14-19), but instead relies on a general assertion that there is "an inherent inconsistency between Article III and the Recess Appointments Clause," Pet. 15, because judges serving recess appointments lack life tenure. That claim is without merit.

i. The Recess Appointments Clause follows immediately after the Appointments Clause within the same section of Article II and concerns closely related subject matter. The provisions thus are most naturally construed in pari materia, so that the Recess Appointments Clause's reference to "all Vacancies" encompasses any vacancy in any office covered by the immediately preceding Appointments Clause (which includes judges of the United States Courts of Appeals).

ii. The Framers' understanding of the Recess Appointments Clause confirms that construction. Hamilton explained that the Clause is "supplementary to" the Appointments Clause, and that "the vacancies of which it speaks must be construed to relate to the 'officers' described in the preceding [clause]." The Federalist No. 67, supra, at 410. Thus, it has long been understood that "the mode of appointing judges * * * is the same with that of appointing the officers of the Union in general." The Federalist No. 78, supra, at 464 (Alexander Hamilton). Moreover, Edmund Randolph, a member of the Constitutional Convention, initially opposed ratification in part because the Constitution empowers the President to make judicial recess appointments. See 3 The Records of the Federal Convention of 1787, at 123, 127 (Max Farrand ed., 1937); Woodley, 751 F.2d at 1010; cf. Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 351 (1816) (construction of Constitution was supported by view "publicly avowed by its friends, and admitted by its enemies" during ratification).1

The application of the Recess Appointments Clause to judicial vacancies is also confirmed by longstanding practice. J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 412 (1926) (practice at the time "the founders of our government and framers of our Constitution were actively participating in public affairs," which has been "long acquiesced in[,] fixes the construction to be given [the Constitution's] provisions"). Beginning just months after the Constitution became effective, President Washington made nine known recess appointments to Article III courts, including the recess appointment of Thomas Johnson to the Supreme Court in 1791 and of John Rutledge to be the second Chief Justice in 1795. App. 24a-25a, infra. Washington had served as President of the Constitutional Convention, and his Cabinet included Alexander Hamilton and John Jay, both contributors to The Federalist Papers, as well as Edmund Randolph. As Secretary of State, Jay would have made out and recorded the commissions, see Act of Sept. 15, 1789, ch.14, § 4, 1 Stat. 68, and Randolph was specifically advised of the appointments, see 30 The Writings of George Washington from the Original Manuscript Sources, 1745-1799, at 472-473 (John C. Fitzpatrick ed., 1939). There is no indication that any member of Washington's Cabinet questioned the constitutionality of these appointments.

Judicial recess appointments continued in the ensuing Administrations of Presidents John Adams, Jefferson, Madison, and Monroe, who together made at least 19 judicial recess appointments, including three appointments to the Supreme Court. See App. 23a- 24a, infra. Judicial recess appointments have continued ever since. With the exception of Presidents William Henry Harrison and John Tyler (who together served a single term), every President until President Nixon made at least one judicial recess appointment. See id. at 26a-27a. President Truman alone made 37 such appointments; President Eisenhower made 27; and Presidents Kennedy and Theodore Roosevelt each made 25. In all, at least 37 Presidents have made 292 known judicial recess appointments. See id. at 26a-27a. At least 12 Supreme Court Justices have received recess appointments, including Chief Justices Warren and Rutledge, and Justices Brennan and Stewart. See id. at 1a; Henry B. Hogue, The Law: Recess Appointments of Article III Judges, 34 Presidential Stud. Q. 656, 660-661 (2004).2 Other prominent judges to have received recess appointments include David Bazelon, Griffin Bell, Augustus Hand, Leon Higginbotham, Thurgood Marshall (to the Second Circuit), and Spottswood Robinson. See App. 3a, 4a, 7a, 11a, infra.

iii. The Senate has acquiesced in and affirmatively approved the practice of judicial recess appointments. Despite the number and visibility of the recess appointments made by the nation's first five presidents, no objections appear to have been raised to the practice. For example, in February 1790, Washington nominated for lifetime appointments a group of candidates that included his first judicial recess appointees, and he specifically informed the Senate which nominees had already received recess appointments. The next day, the Senate confirmed them all without objection. 1 Senate Executive Journal, 1st Cong., 2d Sess. 38, 40 (1790). Of the 28 known recess appointments made during the administrations of Presidents Washington, John Adams, Jefferson, Madison, and Monroe, all but one of the persons appointed were confirmed as an Article III judge.3 See App. 23a-25a, 27a, infra. The sole exception was Chief Justice Rutledge, whose permanent nomination was rejected because of his outspoken opposition to the Jay Treaty, rather than because of objection to his recess appointment. See Ex parte Ward, 173 U.S. 452, 455 n.1 (1899) (reporter's note); see also id. at 456 n.1 (noting that "it appears that * * * both Houses of Congress have recognized [Rutledge] as one of the Chief Justices"). See generally Note, Recess Appointments to the Supreme Court-Constitutional But Unwise?, 10 Stan. L. Rev. 124, 132 (1957) ("During this period, when those who wrote the Constitution were alive and active, not one dissenting voice was raised against the practice."). By our calculation, the Senate has confirmed at least 259 of the 292 known recess appointments made to Article III courts. See App. 26a-27a, infra.

Congress has also enacted statutes providing for compensation of recess appointees, without purporting to exclude judicial recess appointees (or intra-session recess appointees) from eligibility for compensation. See, e.g., 5 U.S.C. 5503(a).4 Those statutes reflect Congress' implicit acknowledgment that the President has the power to make such appointments. Cf. 41 Op. Att'y Gen. 463, 466 (1960) (legislation reflected fact that Congress "implicitly assumed" that the President had the power to make recess appointments to fill vacancies that existed while Congress was in session). The Comptroller General, who is an "officer of the Legislative Branch" and therefore "subservient to Congress," Bowsher v. Synar, 478 U.S. 714, 727, 731 (1986), indicated that judges appointed during an intra-session recess of the Senate had been constitutionally appointed. See 28 Comp. Gen. 30, 34-36 (1948). Even on those occasions when the Senate has requested that the President make fewer judicial recess appointments, it has acknowledged his authority to make them. For example, Senator Hart, who sponsored such a resolution in 1960, acknowledged that "[t]he President does have such power." 106 Cong. Rec. 18,130 (1960).

iv. Since the Framing, courts and judges have also acknowledged the constitutionality of judicial recess appointments. When John Rutledge received a recess appointment to be Chief Justice in 1795, four of the six members of the Court (including Rutledge himself) had signed the Constitution. Compare U.S. Const. (list of signers), with Gerald Gunther, Constitutional Law App. B, at B1 (12th ed. 1991) (list of Justices). None of them objected to the appointment. To the contrary, the "other members of the [C]ourt acted with [Rutledge] as [Chief Justice] without objection." Ex parte Ward, 173 U.S. at 456 n.1 (reporter's note). A fifth member of that Court, James Iredell, opined, after the resignation of Chief Justice Jay, that the President could "make a temporary appointment" of his successor under the Recess Appointments Clause. See 2 Griffith J. McRee, Life and Correspondence of James Iredell 447-448 (1857).

The only two courts that have considered constitutional challenges to judicial recess appointments have held such appointments to be constitutional. See Woodley, supra; Allocco, supra. Relying on the language of the Clause and the unbroken historical record, both affirmed the President's authority to make recess appointments to Article III courts. See Woodley, 751 F.2d at 1009-1012; Allocco, 305 F.2d at 708-709.

v. Petitioner contends (Pet. 15) that the Court should nevertheless grant review in this case because "there is an inherent inconsistency" between the Recess Appointments Clause and Article III, which provides that judges "shall hold their Offices during good Behaviour," U.S. Const. Art. III, § 1. Petitioner asserts that "[t]hese directly conflicting constitutional principles need to be reconciled." Pet. 15. But the Constitution is not, as petitioner and amicus (Br. 18) argue, internally inconsistent on the question of recess appointments for judges.

The Appointments Clause makes clear that "Judges" are among the "Officers" eligible to receive recess appointments. U.S. Const. Art. II, § 2, Cl. 2. The Recess Appointments Clause makes clear that the President's power extends to "all Vacancies" and that such recess appointees receive a fixed term of office until "the End of" the "next Session" of the Senate. Id. Art. II, § 2, Cl. 3 (emphasis added). The Good Behaviour provision does not contradict those provisions. For non-recess-appointed Article III judges, life tenure is the product of the lack of a constitutionally defined term of office combined with the protections of the Good Behaviour provision. Cf. Ex parte Hennen, 38 U.S. (13 Pet.) 230, 259 (1839) (stating that the Good Behaviour provision implies life tenure for "offices, the tenure of which is not fixed by the Constitution") (emphasis added). But for judicial recess appointees, the Recess Appointments Clause defines their term of office, and the Good Behaviour provision forecloses any possible inference that the President's express power to appoint Article III judges gives rise to an implied power to remove them at will. See Myers v. United States, 272 U.S. 52 (1926). There is therefore no tension between the two clauses and certainly no basis for ignoring the unambiguous language of the Recess Appointments Clause clearly indicating that it applies to all vacancies and includes judges among the officers eligible to receive recess appointments.

b. Petitioner contends that the Recess Appointments Clause applies only to inter-session, not intra-session, recesses. Pet. 8-12; see also Kennedy Amicus Br. 5-14. Petitioner offers three arguments in support of that claim. First, he contends, the Recess Appointments Clause "refers to the singular 'Recess' * * * which could only mean the single recess that occurs between sessions of Congress (the 'inter-session recess')." Pet. 8; see also Kennedy Amicus Br. 6 ("'Recess' * * * was a term of art that referred specifically to the break between the generally uninterrupted sessions of Congress."). Second, reading the Clause to apply to intra-session recesses would result in appointments of varying length and would give an individual who is appointed during an intra-session recess more than a single session of Congress in which to be confirmed, which petitioner claims is "irrational" (Pet. 10) and "makes no sense." Pet. 9. Third, petitioner contends (Pet. 10-11) that the Constitution draws a consistent distinction between intra-session breaks, which it terms "adjournments," and inter-session breaks, which it denominates as "recess[es]." Those claims are without merit. The language of the Clause, its purpose, and historic practice refute petitioner's proposed distinction.

i. "The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning." United States v. Sprague, 282 U.S. 716, 731 (1931). In its normal and ordinary usage, the term "Recess" did not denote any distinction between inter-session and intra-session recesses; it was instead a general term for the suspension of business. See, e.g., 2 Samuel Johnson, A Dictionary of the English Language (1755) (a "[r]emission or suspension of any procedure" or "[d]eparture into privacy"); 2 Noah Webster, An American Dictionary of the English Language 51 (1828) ("Remission or suspension of business or procedure; as, the house of representatives had a recess of half an hour."). Such a distinction would have been inconsistent with the legislative practices with which the Framers were familiar. Parliament had long used the term "recess" to describe both inter-session and intra-session recesses. Compare 12 H.L. Jour. 649 (1674) ("His Majesty therefore thinks it fit to make a Recess at this Time * * *. He hath given order to the Lord Keeper to prorogue the Parliament * * *."), with 14 H.L. Jour. 376 (1689) (referring to "Recess at Christmas"), and 17 H.L. Jour. 601 (1704) (referring to the Christmas "Recess now at Hand"). As Thomas Jefferson explained in the parliamentary manual he created for the Senate, the English Parliament was the most familiar model in that day. See Thomas Jefferson, A Manual of Parliamentary Practice: For the Use of the Senate of the United States, Preface (2d ed. 1812) in Jefferson's Parliamentary Writings: "Parliamentary Pocket-Book" and a Manual of Parliamentary Practice 355-356 (Wilbur Samuel Howell ed., 1988) (Jefferson Manual).

Congress' own usage confirms that the term is not limited to inter-session breaks. For example, in the spring of 1812, Congress debated a proposed intra-session break and, in doing so, repeatedly referred to the intra-session break as a "recess" and used the terms "recess" and "adjournment" interchangeably. See, e.g., 24 Annals of Cong. 1279, 1314-1316, 1334-1342, 1347-1353 (1812). A 1905 Report of the Senate Judiciary Committee, specifically addressing the Recess Appointments Clause, said that the word "recess" is "one of ordinary, not technical signification" and is "used in the constitutional provision in its common and popular sense." S. Rep. No. 4389, 58th Cong., 3d Sess. (1905) (reprinted in 39 Cong. Rec. 3823 (1905)). The Committee concluded that the word "recess" refers to "the period of time when the Senate is not sitting in regular or extraordinary session as a branch of the Congress, or in extraordinary session for the discharge of executive functions." Ibid. The Senate continues to view that Report as authoritative. See Riddick's Senate Procedure 947 & n.46 (1992) <http://www. gpoaccess.gov>. To this day, official congressional documents define a "recess" as "any period of three or more complete days-excluding Sundays-when either the House of Representatives or the Senate is not in session." Joint Committee on Printing, 2003-2004 Congressional Directory 526 n.2 (Congressional Directory). Consistent with that understanding, the Concurrent Resolution authorizing the break during which Judge Pryor was appointed expressly described it as a "reces[s]." H.R. Con. Res. 361, 108th Cong., 2d. Sess. (2004); see also 150 Cong. Rec. S1414 (daily ed. Feb. 12, 2004) (statement of Sen. Frist) (referring to break as a "recess").

ii. Petitioner errs in contending (Pet. 8; see also Kennedy Amicus Br. 6) that the provision's use of the definite article "the" and the singular form "Recess" limit its application to inter-session recesses. To begin with, there is no single recess in each Senate to which the phrase "the recess of the Senate" could apply. The Framers had no background understanding that each Congress would sit for only two sessions, nor does the Constitution restrict a term of Congress to only two sessions. To the contrary, the first, fifth, and eleventh Congresses each held three sessions, as did 25 of the first 76 Congresses; the 67th Congress held four sessions. See Congressional Directory 512-518. Even in a two-session Congress, there is more than one Senate recess; there is one recess between sessions and another recess before the beginning of the next Congress.

At the time of the Framing, phrases such as "during the recess" and "in the recess" were widely used to refer to multiple and intra-session recesses. In 1775, for example, the Continental Congress recommended that the colonies create committees of safety to address matters "for the security and defence of their respective colonies, in the recess of their assemblies." 11 Journals of the Continental Congress, 1774-1789, at 189 (July 18, 1775) (emphasis added). There is no suggestion that the Continental Congress intended that phrase to limit the recesses during which committees of safety should be used. Indeed, the practice of both New York and Pennsylvania (which appointed committees of safety during two intra-session recesses in 1775) bears this out. See, e.g., Agnes Hunt, The Provincial Committees of Safety of the American Revolution 64 (1904); 1 Charles Z. Lincoln, The Constitutional History of New York 52 (1906); 5 Series 4, American Archives 655, 673 (M. St. Clair Clarke & Peter Force eds., 1844) (1776); Ch. 716, 8 Pa. Stat. 456 (1770-1776) (session from Oct. 14, 1775 to Sept. 26, 1776). Similarly, other provisions of the Constitution demonstrate that use of the definite article does not limit application of a clause to only a single thing. Article, I, Section 5, Clause 4 provides that "[n]either House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days" (emphasis added). Because the Constitution elsewhere requires that Congress "shall assemble at least once in every Year" (Art. I, § 4, Cl. 2), thus requiring at least two sessions per Congress, the phrase "during the Session of Congress" could not limit the Clause to a single Session. Thus, construed in its textual and historical context, the phrase "during the Recess" simply refers to any period during which Congress is in "Recess."

iii. Petitioner contends (Pet. 11, see also Kennedy Amicus Br. 6) that the Constitution uses a separate term, "adjourn," to refer to breaks within a session of Congress, citing Article I, Section 5, Clause 4 (quoted above). That argument is without merit. "Adjourn" and "Recess" cannot be neatly cabined, with the former applying to intra-session breaks and the latter to inter-session breaks. "Adjourn" (like "Recess") encompasses both inter-session and intra-session breaks. In construing the Pocket Veto Clause of the Constitution, which applies when "Congress by their Adjournment prevent" the President from returning a bill (U.S. Const. Art. I, § 7, Cl. 2), this Court made clear that an "Adjournment" includes both "the final adjournment of the Congress" at the end of a session and other "interim adjournment[s]" during sessions. The Pocket Veto Case, 279 U.S. 655, 680 (1929). "Adjournment" must include inter-session recesses, because it is undisputed that the Pocket Veto Clause applies at least to such breaks, and amicus Senator Kennedy himself has urged that it applies only to such breaks. See Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974). This Court has used the terms interchangeably in the context of the clause petitioner cites. See Wright v. United States, 302 U.S. 583, 589 (1938) (describing the one-House, three-day, intra-session adjournment permitted by Art. I, § 5, Cl. 4 as "a short recess by one House without the consent of the other") (emphasis added); see also Harris v. Board of Governors of the Fed. Reserve Sys., 938 F.2d 720, 723 (7th Cir. 1991) (Posner, J.) ("all that 'adjournment' means is that the Congress is in recess"). The same understanding is reflected in Jefferson's parliamentary manual, which explained that Congress may separate in "two ways only": either through "dissolution by the efflux of their time" or through "adjournment." Jefferson Manual, supra, § LI. Jefferson described this latter type of break as "recess by adjournment." Ibid. In authorizing the break during which Judge Pryor was appointed, Congress itself suggested that the terms were interchangeable. See H.R. Con. Res. 361, 108th Cong., 2d Sess. (2004) (describing the Senate as "recessed or adjourned").

iv. Petitioner asserts that it would "make[] no sense" for recess appointments to last almost two years, from near the beginning of one session until "the End of th[e] next Session" (U.S. Const. Art. II, § 2, Cl. 3), which, he claims, demonstrates that the Framers must have intended the Clause to apply only to inter-session recesses. Pet. 9-10; see also Kennedy Amicus Br. 7. Neither the potential length of the term nor its variability renders application of the Clause to intra-session recesses "irrational." Pet. 10. The variability stems from the fact that the Framers chose a single term that would apply well in various circumstances. And there is nothing unique about the variable length of intra-session recess appointments. Recess appointments made during either intra-session or inter-session recesses will vary in length depending on Congress' decisions about the number and duration of sessions it determines to hold.

v. The applicability of the Recess Appointments Clause to intra-session recesses is substantiated by longstanding historical practice. See The Pocket Veto Case, 279 U.S. at 689 ("Long settled and established practice is a consideration of great weight in a proper interpretation of constitutional provisions."). For as long as Congress has scheduled frequent intra-session recesses, Presidents have made intra-session recess appointments. Before 1857, Presidents had virtually no occasion to make such appointments. During that period, Congress scheduled only three brief intra-session recesses, for periods of seven, five, and five days, over the Christmas holidays of 1800, 1817, and 1828, respectively. See Congressional Directory 512-514. Between 1857 and 1867, Congress scheduled seven such recesses, but none exceeded two weeks. See id. at 514-515. In 1867, however, Congress scheduled an intra-session recess extending from March 30 to July 3. See id. at 515. President Johnson made 14 known recess appointments during that period, including the appointment to the district court of Samuel Blatchford (who later served on this Court for 11 years). See Congressional Research Service, Intrasession Recess Appointments 5 (Apr. 23, 2004). Despite considerable acrimony between President Johnson and Congress over appointments (that would come to a head when, several months later, Congress impeached President Johnson in part for attempting to remove Secretary of War Edwin Stanton in violation of the Tenure of Office Act, ch. 154, 14 Stat. 430, see generally William H. Rehnquist, Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson 212-218 (1992)), Congress appears never to have objected to those appointments.

During the twentieth century, Congress made increasingly frequent use of intra-session recesses. See Congressional Directory 519-525. There has been a corresponding increase in the number of intra-session recess appointments. Although amicus (Br. 13) contends that "[o]nly since the 1970s have recess appointments during intra-session adjournments become a more recurrent, rather than sporadic and extraordinary, practice," use of the power became common much earlier. Presidents Harding and Coolidge made intra- session recess appointments. Presidents Roosevelt, Truman, and Eisenhower made a total of 148 known intra-session recess appointments between 1943 and 1960. See Intrasession Recess Appointments, supra, at 3. Although historical records are incomplete, at least 12 different Presidents have made at least 285 intra-session recess appointments since 1867, including the appointment of at least 14 Article III judges. See id. at 5-32.

That practice of intra-session recess appointments is supported by a line of Executive Branch precedent dating back to Attorney General Daugherty's 1921 opinion on the issue. See 33 Op. Att'y Gen. 20 (1921); accord, e.g., 41 Op. Att'y Gen. 463, 466-469 (1960); 20 Op. Off. Legal Counsel 124, 161 (1996); 16 Op. Off. Legal Counsel 15, 15-16 (1992); 13 Op. Off. Legal Counsel 271, 272-273 (1989); 6 Op. Off. Legal Counsel 585, 588 (1982); 3 Op. Off. Legal Counsel 314, 316 (1979). Attorney General Daugherty's opinion reasoned that the Constitution does not distinguish between inter-session and intra-session recesses, but instead permits appointments unless "in a practical sense the Senate is in session so that its advice and consent can be obtained." 33 Op. Att'y Gen. at 21-22. The Attorney General noted that the purpose of the Recess Appointments Clause was to enable the President to "keep * * * offices filled," and thereby prevent any "interval of time where there may be an incapacity of action" by the government, and he stressed that that purpose would be frustrated if intra-session appointments were deemed categorically impermissible. Id. at 22-23. The Attorney General further relied on Congress' understanding (as reflected in the 1905 Judiciary Committee report) and judicial precedent (discussed below). See id. at 23-24.

Attorney General Daugherty carefully considered the contrary views previously expressed by Attorney General Knox, who had opined that the President could not make intra-session recess appointments. See 33 Op. Att'y Gen. at 21 (citing 23 Op. Att'y Gen. 599 (1901)). Attorney General Knox acknowledged that an intra-session recess "may be a recess in the general and ordinary use of that term." 23 Op. Att'y Gen. at 602. He also acknowledged that, under his view, the President would be powerless to make any appointments during an intra-session recess of "several months," but he dismissed that concern as a mere "argument from inconvenience." Id. at 603. He also acknowledged that his opinion was contrary to judicial precedent, which he dismissed as not "binding authority." Ibid. Attorney General Daugherty, after reviewing those arguments with "more than ordinary care," 33 Op. Att'y Gen. at 21, expressly repudiated the opinion as inconsistent with the text and purpose of the Recess Appointments Clause. Id. at 21-24. Contrary to petitioner's assertion (Pet. 12) that the permissibility of intra-session recesses has "been the subject of debate for over one hundred years within the Executive Branch itself, without satisfactory resolution," Attorney General Daugherty's conclusion has been repeatedly reaffirmed in at least six formal opinions. See p. 25, supra (collecting authorities).5

The Senate also has long acquiesced in the practice. Notwithstanding some 285 intra-session recess appointments over the last 140 years, the Senate appears never to have raised constitutional concerns about the practice. Indeed, the Comptroller General in 1948 endorsed the "accepted view" (28 Comp. Gen. 30, 34) of the President's power reflected by Attorney General Daugherty's 1921 opinion, indicating that four judges that President Truman had appointed during an intra-session recess had been constitutionally seated. Id. at 34-37. And, as discussed above, see pp. 14-15, supra, Congress has enacted legislation providing for the payment of recess appointees without exempting persons appointed during intra-session recesses.

Only two judicial opinions appear to have addressed the constitutionality of intra-session recess appointments. Both concluded that such appointments were constitutional. See Gould v. United States, 19 Ct. Cl. 593, 595-596 (1884) ("We have no doubt that a vacancy occurring while the Senate was thus temporarily adjourned * * * , could be and was legally filled by appointment of the President acting alone."); Nippon Steel Corp. v. United States Int'l Trade Comm'n, 239 F. Supp. 2d 1367, 1374 n.13 (Ct. Int'l Trade 2002) ("The long history of the practice (since at least 1867) without serious objection by the Senate, * * * demonstrates the legitimacy of these appointments.").

vi. Amicus errs in suggesting (Br. 8) that the Clause was intended narrowly "to prevent a crisis in vacancies," and that intra-session recesses do not implicate the purposes of the Clause. That was not the Framers' understanding. As Hamilton explained, the Clause provides "an auxiliary method of appointment, in cases to which the general method was inadequate," The Federalist No. 67, supra, at 409, and empowers the President to address vacancies "which it might be necessary for the public service to fill without delay." Id. at 410; see also 3 Commentaries on the Constitution, supra, § 804, at 574 (describing the Clause as intended to achieve "convenience, promptitude of action, and general security"). Nothing in those formulations suggests restricting the power to emergency situations. See Staebler v. Carter, 464 F. Supp. 585, 597 (D.D.C. 1979) ("there is nothing to suggest that the Recess Appointment Clause was designed * * * to be used only in cases of extreme necessity"). Inter-session and intra-session recesses equally implicate the concerns and purpose of the Clause. In neither type of recess is the Senate sitting as a body able to provide its advice and consent.

Nor is there any inherent difference in the length of inter-session and intra-session recesses that would explain the inclusion of one and the exclusion of the other. Nothing in the Constitution suggests that intra-session recesses are necessarily short, or inter-session recesses necessarily long. Inter-session recesses can be quite short, and indeed, Congress occasionally has eliminated inter-session recesses entirely, as it did in 1867, 1903, and 1941. See Congressional Directory 515, 517-518. Founding-era documents indicate an appreciation that intra-session recesses could be lengthy. See Jefferson Manual, supra, § LI, at 419 (intra-session recess is "a continuance of the session from one day to another, or for a fortnight, a month &c ad libitum"). Congress routinely schedules intra-session recesses of one month or more, as it has done at least eight times during the Administrations of Presidents Clinton and George W. Bush. See Intrasession Recess Appointments, supra, at 3-4. Moreover, Congress has scheduled a nearly two-month intra-session recess as recently as the Reagan Administration, and two intra-session recesses of more than 100 days as recently as the Truman Administration. See id. at 3. A recess-appointment power that could be freely invoked during a one-day inter-session recess, but would be categorically barred during a three-month intra-session recess, would be "irrational" (Pet. 10) and would ill serve the purpose of the Clause.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Acting Solicitor General
CHRISTOPHER A. WRAY
Assistant Attorney General
JEFFREY P. SINGDAHLSEN
Attorney

SEPTEMBER 2004

1 In a footnote, amicus suggests (Br. 5 n.2) that the Recess Appointments Clause can be read to apply only to vacancies that happen to arise during recesses rather than those that happen to exist during recesses. That interpretation has been rejected by both courts of appeals to have addressed the question, see Woodley, 751 F.2d at 1012-1013; Allocco, 305 F.2d at 709-714, as well as by a "long and unanimous line of opinions of the Attorneys General," 41 Op. Att'y Gen. 463, 465 (1960) (collecting authorities), beginning during the Monroe Administration, see 1 Op. Att'y Gen. 631, 631-633 (1823). See generally Henry B. Hogue, Recess Appointments: Frequently Asked Questions 2 (Sept. 10, 2002) (Cong. Research Serv. Report) <http://www.senate.gov/reference/ resources/pdf/RS21308.pdf> ("Attorneys General and courts have now long supported" the interpretation that the Clause applies to any vacancies that exist during a recess).

2 Some sources indicate that Justice Alfred Moore, the first Justice Harlan, and Justice Holmes received recess appointments. See Recess Appointments of Article III Judges, supra, at 660. The author of a recent article concludes that the historical evidence indicates that Justices Moore and Harlan did not receive recess appointments, id. at 661-662, and that although Justice Holmes may have been offered a recess appointment, "the process was aborted before the appointment had any functional effect." Id. at 665.

3 Although Henry Livingston (who was appointed to the District Court for the District of New York) was not confirmed to that position, he then received a recess appointment to the Supreme Court, and was confirmed in a permanent appointment to that position. See App. 23a-24a, infra.

4 Section 5503(a) provides:

Payment for services may not be made from the Treasury of the United States to an individual appointed during a recess of the Senate to fill a vacancy in an existing office, if the vacancy existed while the Senate was in session and was by law required to be filled by and with the advice and consent of the Senate, until the appointee has been confirmed by the Senate. This subsection does not apply-

(1) if the vacancy arose within 30 days before the end of the session of the Senate;

(2) if, at the end of the session, a nomination for the office, other than the nomination of an individual appointed during the preceding recess of the Senate, was pending before the Senate for its advice and consent; or

(3) if a nomination for the office was rejected by the Senate within 30 days before the end of the session and an individual other than the one whose nomination was rejected receives a recess appointment.

5 Petitioner (Pet. 12) and amicus (Br. 12) err in claiming support from Attorney General Daugherty's analysis of the minimum break that could constitute a recess for constitutional purposes. As explained above, the Attorney General first concluded that a 28-day intra-session break clearly did constitute a recess for purposes of the Recess Appointments Clause. See 33 Op. Att'y Gen. at 20-24. Then, citing Article I, Section 5, Clause 4, he stated "unhesitatingly" that a break "for only 2 instead of 28 days" did not constitute such a recess. 33 Op. Att'y Gen. at 24. Finally, he stated more equivocally, "Nor do I think an adjournment of 5 or even 10 days can be said to constitute the recess intended by the Constitution." Id. at 25. The Attorney General went on, however, to suggest that courts cannot enforce any minimum duration requirement other than the one specifically set forth in Article I, Section 5, Clause 4. He stressed that "the line of demarcation can not be accurately drawn," that the President must have "large, though not unlimited" discretion in making appointments, and that "[e]very presumption is to be indulged in favor of the validity of whatever action he may take." Ibid. In any event, using traditional measures, Judge Pryor's appointment came during an 11-day recess, rather than a ten-day recess, as petitioner and amicus claim (by excluding the first day). See, e.g., 16 Op. Off. Legal Counsel at 16 (setting forth method of measuring recesses); 13 Op. Off. Legal Counsel 271 (1989) (same); 33 Op. Att'y Gen. at 21, 24 (same). Many Presidents have made intra-session recess appointments during recesses of comparable duration, including Presidents Coolidge (13 days), Reagan (13 days), George H.W. Bush (17 days), and Clinton (9, 10, 11, and 16 days). See Intrasession Recess Appointments, supra, at 3-4; see also Recess Appointments of Article III Courts, supra, at 671 (noting that Presidents Lyndon Johnson and Taft made recess appointments of judges during seven- and eight-day recesses, respectively).

APPENDIX
Recess Appointments to the Supreme Court of the United States

Name
Position
Date of Recess Appointment
Action
Taken
Potter Stewart
Associate Justice
10/14/1958
Confirmed 5/5/1959
William
J. Brennan
Associate Justice
10/15/1956
Confirmed 3/19/1957
Earl Warren
Chief Justice
10/2/1953
Confirmed 3/1/1954
David Davis
Associate Justice
10/17/1862
Confirmed 12/8/1862*
Benjamin R. Curtis
Associate Justice
9/22/1851
Confirmed 12/20/1851*
Levi Woodbury
Associate Justice
9/20/1845
Confirmed 1/3/1846*
John McKinley
Associate Justice
4/22/1837
Confirmed 9/25/1837*
Smith Thompson
Associate Justice
9/1/1823
Confirmed 12/9/1823*
Henry B.
Livingston
Associate Justice
11/10/1806
Confirmed 12/17/1806*
Bushrod Washington
Associate Justice
9/29/1798
Confirmed 12/20/1798*
John Rutledge
Chief Justice
7/1/1795
Rejected 12/15/1795
Thomas Johnson
Associate Justice
8/5/1791
Confirmed 11/7/1791*

Unless otherwise indicated, the information set forth in these tables was compiled from records of individual federal judicial appointments maintained by the Office of Legal Policy at the United States Department of Justice.

*Federal Judicial Center, Federal Judges Biographical Database (last modified Sept. 20, 2004) <http://www.fjc.gov/history/home.nsf>.

Recess Appointments of Federal Judges

Judge
Court
Recess Appoint-ment Date
Action Taken
George W. Bush (2001-present)
William H. Pryor
Jr.
11th Cir.
2/20/2004*
N/A
Charles W. Pickering
5th Cir.
1/16/2004
N/A
William J. Clinton (1993-2001)
Roger L. Gregory
4th Cir.
12/27/2000
Confirmed 7/20/2001
George H.W. Bush (1989-93)
None



Ronald W. Reagan (1981-89)
None



Jimmy Carter (1977-81)
Walter M. Heen
D. Haw.
12/31/1980
Recess appointment expired 12/16/1981 after nomination withdrawn 1/22/1981
Gerald R. Ford (1974-77)
None



Richard M. Nixon (1969-74)
None




Lyndon B. Johnson (1963-69)
John M. Davis
E.D. Pa.
1/7/1964
Confirmed 3/14/1964
David Rabinovitz
W.D. Wis.
1/7/1964
Service termi-
nated when
Congress ad-
journed 10/4/1964
Aloysius Leon
Higginbotham, Jr.
E.D. Pa.
1/6/1964
Confirmed 3/14/1964
Spottswood W.
Robinson III
D.D.C.*
1/6/1964
Confirmed 7/1/1964
John F. Kennedy (1961-63)
William J. Nealon, Jr.
M.D. Pa.
12/13/1962
Confirmed 3/15/1963
Bernard M. Decker
N.D. Ill.
12/12/1962
Confirmed 3/28/1963
James L. Almond
C.C.P.A.
10/23/1962
Confirmed 6/28/1963
Frank Gray, Jr.
M.D. Tenn.
11/20/1961
Confirmed 2/17/1962
Charles Gilbert
Neese
E.D. Tenn.
11/20/1961
Confirmed 2/7/1962
Louis Rosenberg
W.D. Pa.
11/20/1961
Confirmed 7/10/1962
Harrison L. Winter
D. Md.
11/9/1961
Confirmed 2/7/1962
Lunsford R. Preyer
M.D.N.C.
10/7/1961
Confirmed 2/7/1962
Clarence W. Allgood
N.D. Ala.
10/5/1961
Confirmed 2/5/1962
Griffin B. Bell
5th Cir.
10/5/1961
Confirmed 2/5/1962
Dudley B. Bonsal
S.D.N.Y.
10/5/1961
Confirmed 3/16/1962
Henry Leo Brewster
N.D. Tex.
10/5/1961
Confirmed 3/16/1962
Irving B. Cooper
S.D.N.Y.
10/5/1961
Confirmed 9/20/1962
Frederick A.
Daugherty
E.D. Okla.
10/5/1961
Confirmed 2/7/1952
Wilfred Feinberg
S.D.N.Y.
10/5/1961
Confirmed 3/16/1962
Walter P. Gewin
5th Cir.
10/5/1961
Confirmed 2/5/1962
Ben C. Green
N.D. Ohio
10/5/1961
Confirmed 6/29/1962
Paul R. Hays
2d Cir.
10/5/1961
Confirmed 3/16/1962
Sarah T. Hughes
N.D. Tex.
10/5/1961
Confirmed 3/16/1962
Thurgood Marshall
2d Cir.
10/5/1961
Confirmed 9/11/1962
James L. Noel, Jr.
S.D. Tex.
10/5/1961
Confirmed 3/16/1962
John W. Peck
S.D. Ohio
10/5/1961
Confirmed 4/11/1962
George Rosling
E.D.N.Y.
10/5/1961
Confirmed 3/16/1962
Talbot Smith
E.D. Mich.
10/5/1961
Confirmed 2/5/1962
Adrian A. Spears
W.D. Tex.
10/5/1961
Confirmed 3/16/1962

Dwight D. Eisenhower (1953-61)
Andrew A. Caffrey
D. Mass.
10/13/1960
Confirmed 8/9/1961


John Feikens
E.D. Mich.
10/13/1960
Recess appointment expired 9/27/1961
Cyrus N. Tavares
D. Haw.
10/13/1960
Confirmed 9/21/1961
Jesse Smith Henley
E.D. Ark.
10/25/1958
Confirmed 9/2/1959
Herbert S. Boreman
4th Cir.
10/17/1958
Confirmed 6/16/1959
Potter Stewart
S. Ct.
10/14/1958
Confirmed 5/5/1959
Edwin A. Robson
N.D. Ill.
9/29/1958
Confirmed 4/29/1959
George L. Hart
D.D.C.
8/29/1958
Confirmed 9/9/1959
Edwin M. Stanley
M.D.N.C.
10/23/1957
Confirmed 2/25/1958
Leonard P. Moore
2d Cir.
9/6/1957
Confirmed 2/25/1958
William J. Brennan
S. Ct.
10/15/1956
Confirmed 3/19/1957
Ewing T. Kerr
D. Wyo.
10/22/1955
Confirmed 3/1/1956
John M. Cashin
S.D.N.Y.
8/17/1955
Confirmed 3/1/1956
Joseph P. Lieb
M.D. Fla.
8/13/1955
Confirmed 3/1/1956
William B. Herlands
S.D.N.Y.
8/12/1955
Confirmed 6/26/1956
Charles W. Kraft, Jr.
E.D. Pa.
8/12/1955
Confirmed 3/28/1956
Robert D. Watkins
D. Md.
8/12/1955
Confirmed 3/1/1956
Edward J. Devitt
D. Minn.
12/10/1954
Confirmed 2/4/1955
Walter M. Bastian
D.C. Cir.
9/20/1954
Confirmed 12/2/1954
Lamar R. Cecil
E.D. Tex.
8/31/1954
Confirmed 12/2/1954
George T. Mickelson
D.S.D.
12/9/1953
Confirmed 2/9/1954
Elmer J.
Schnackenberg
7th Cir.
11/17/1953
Confirmed 2/9/1954
Edward W. Day
D.R.I.
11/10/1953
Confirmed 2/9/1954
Carroll C. Hincks
2d Cir.
10/3/1953
Confirmed 2/9/1954
Edwin F. Hunter
W.D. La.
10/3/1953
Confirmed 2/9/1954
Earl Warren
S. Ct.
10/2/1953
Confirmed 3/1/1954
John A. Danaher
D.C. Cir.
10/1/1953
Confirmed 3/30/1954
Harry S. Truman (1945-53)
Monroe M. Friedman
N.D. Cal.
7/17/1952
Nomination withdrawn 7/24/1953
David N. Edelstein
S.D.N.Y.
11/1/1951
Confirmed 4/7/1952

Ernest A. Tolin
S.D. Cal.
10/30/1951
Confirmed 6/10/1952
Walter M. Bastian
D.D.C.
10/23/1950
Confirmed 12/14/1950
William M. Byrne
S.D. Cal.
9/27/1950
Confirmed 12/13/1950
Oliver J. Carter
N.D. Cal.
9/27/1950
Confirmed 12/13/1950
Robert L. Taylor
E.D. Tenn.
11/2/1949
Confirmed 3/8/1950
Maurice N. Andrews
N.D. Ga.
10/21/1949
Rejected by
Senate 8/9/1950
David L. Bazelon
D.C. Cir.
10/21/1949
Confirmed 2/8/1950
Owen M. Burns
W.D. Pa.
10/21/1949
Confirmed 3/8/1950
Thomas J. Clary
E.D. Pa.
10/21/1949
Confirmed 3/8/1950
Charles Fahy
D.C. Cir.
10/21/1949
Confirmed 4/4/1950
Allan K. Grim
E.D. Pa.
10/21/1949
Confirmed 4/4/1950
William H. Hastie
3d Cir.
10/21/1949
Confirmed 7/19/1950
Delmas C. Hill
D. Kan.
10/21/1949
Confirmed 3/8/1950
Frank A. Hooper, Jr.
N.D. Ga.
10/21/1949
Confirmed 2/21/1950
Irving R. Kaufman
S.D.N.Y.
10/21/1949
Confirmed 4/4/1950
James R. Kirkland
D.D.C.
10/21/1949
Confirmed 3/8/1950
John F.X. McGohey
S.D.N.Y.
10/21/1949
Confirmed 3/8/1950
Charles F.
McLaughlin
D.D.C.
10/21/1949
Confirmed 2/28/1950
Burnita S. Matthews
D.D.C.
10/21/1949
Confirmed 4/4/1950
Gregory F.X.
Noonan
S.D.N.Y.
10/21/1949
Confirmed 4/25/1950


Willis W. Ritter
D. Utah
10/21/1949
Confirmed 6/29/1950
Gus J. Solomon
D. Ore.
10/21/1949
Confirmed 6/27/1950
Sidney Sugarman
S.D.N.Y.
10/21/1949
Confirmed 4/28/1950
Hardress N. Swaim
7th Cir.
10/21/1949
Confirmed 2/8/1950
Carroll O. Switzer
S.D. Iowa
10/21/1949
Rejected by
Senate 8/9/1950; resigned 12/26/1950
George T.
Washington
D.C. Cir.
10/21/1949
Confirmed 4/28/1950
James S. Wright
E.D. La.
10/21/1949
Confirmed 3/8/1950
David E. Henderson
W.D.N.C.
9/1/1948
Resigned without confirmation 2/13/1949
Roy W. Harper
E.D. Mo. & W.D. Mo.
6/22/1948
Confirmed 1/31/1949
Samuel H. Kaufman
S.D.N.Y.
6/22/1948
Confirmed 1/31/1949
Edward A. Tamm
D.D.C.
6/22/1948
Confirmed 3/29/1949
Roy W. Harper
E.D. Mo. & W.D. Mo.
12/20/1947
Recess appointment expired 6/22/1948*
Sylvester J. Ryan
S.D.N.Y.
11/1/1947
Confirmed 12/18/1947



Roy W. Harper
E.D. Mo. & W.D. Mo.
8/7/1947
Recess appointment expired 12/19/1947*
Edward M. Curran
D.D.C.
10/16/1946
Confirmed 2/3/1947
Richmond B. Keech
D.D.C.
10/14/1946
Confirmed 1/22/1947
Franklin D. Roosevelt (1933-45)
Guy K. Bard
E.D. Pa.
12/20/1939
Confirmed 4/24/1940
Thomas G. Walker
D.N.J.
12/20/1939
Confirmed 3/5/1940
Alfred D. Barksdale
W.D. Va.
12/19/1939
Confirmed 2/1/1940
Armistead M. Dobie
4th Cir.
12/19/1939
Confirmed 2/1/1940
Michael L. Igoe
N.D. Ill.
11/21/1938
Confirmed 2/9/1939
Otto Kerner
7th Cir.
11/21/1938
Confirmed 2/1/1939
James V. Allred
S.D. Tex.
7/11/1938
Confirmed 2/16/1939
Floyd H. Roberts
W.D. Va.
7/6/1938
Rejected and resigned 2/6/1939
John H. Druffel
S.D. Ohio
9/22/1937
Confirmed 12/8/1937
David J. Davis
N.D. Ala.
12/10/1935
Confirmed 1/22/1936
Seth Thomas
8th Cir.
12/2/1935
Confirmed 1/22/1936


Albert Levitt
D.V.I.
9/20/1935
Resigned without confirmation 7/31/1936
William H. Holly
N.D. Ill.
11/8/1933
Confirmed 2/20/1934
Philip L. Sullivan
N.D. Ill.
11/8/1933
Confirmed 2/20/1934
William Woodburn
D. Nev.
9/23/1933
Declined appointment
James E. Major
S.D. Ill.*
6/12/1933
Confirmed 1/23/1934
Herbert Hoover (1929-33)
George E.Q. Johnson
N.D. Ill.
8/3/1932
Recess appointment expired 3/4/1933 after
nomination rejected 3/3/1933
Daniel W.
O'Donoghue
D.D.C.
10/28/1931
Confirmed 1/26/1932
William C. Chestnut
D. Md.
5/9/1931
Confirmed 1/12/1932
Morris A. Soper
4th Cir.
5/6/1931
Confirmed 1/12/1932
Fred D. Letts
D.D.C.
5/5/1931
Confirmed 2/17/1932
James A. Fee
D. Ore.
3/18/1931
Confirmed 12/22/1931
John Knight
W.D.N.Y.
3/18/1931
Confirmed 1/6/1932*


Gunnar H. Nordbye
D. Minn.
3/18/1931
Confirmed 2/3/1932
Calvin Coolidge (1923-29)
James W. McCarthy
D.N.J.
10/6/1928
Confirmed 1/8/1929 but
resigned 1/31/1929
Wayne G. Borah
E.D. La.
10/3/1928
Confirmed 12/17/1928
Nelson McVicar
W.D. Pa.
9/14/1928
Confirmed 12/17/1928
Crate D. Bowen
S.D. Fla.
5/31/1928
Declined appointment
Edgar S. Vaught
W.D. Okla.
5/31/1928
Confirmed 1/8/1929
Edward J. Moinet
E.D. Mich.
6/13/1927
Confirmed 12/19/1927
Ira L. Letts
D.R.I.
6/9/1927
Confirmed 1/4/1928
Simon L. Adler
W.D.N.Y.
5/19/1927
Confirmed 1/16/1928*
Frederick H. Bryant
N.D.N.Y.
5/19/1927
Confirmed 12/19/1927
Frank J. Coleman
S.D.N.Y.
5/19/1927
Confirmed 12/19/1927
Augustus N. Hand
2d Cir.
5/19/1927
Confirmed 1/18/1928
William C. Coleman
D. Md.
4/6/1927
Confirmed 12/19/1927
Johnson J. Hayes
M.D.N.C.
4/6/1927
Confirmed 12/17/1927
Elliott Northcott
4th Cir.
4/6/1927
Confirmed 12/15/1927
William J. Tilson
M.D. Ga.
3/5/1927
Resigned without confirmation 3/19/1928
William J. Tilson
M.D. Ga.
7/6/1926
Nomination withdrawn 2/9/1927
Louis H. Burns
E.D. La.
10/3/1925
Confirmed 12/21/1925
John J. Parker
4th Cir.
10/3/1925
Confirmed 12/14/1925
Harry B. Anderson
W.D. Tenn.
9/12/1925
Confirmed 1/29/1926
Wallace McCamant
9th Cir.
5/25/1925
Resigned 5/2/1926 after
nomination rejected 3/17/1926
William L. Clark
D.N.J.
5/21/1925
Confirmed 12/17/1925
Albert W. Johnson
M.D. Pa.
5/21/1925
Confirmed 12/17/1925
Fred M. Raymond
W.D. Mich.
5/8/1925
Confirmed 12/18/1925
Edward J. Henning
S.D. Cal.
4/24/1925
Confirmed 12/15/1925
Merrill E. Otis
W.D. Mo.
3/23/1925
Confirmed 12/14/1925
Ernest F. Cochran
E.D.S.C.
11/22/1923
Confirmed 1/21/1924
Warren G. Harding (1921-23)
William A. Cant
D. Minn.
5/21/1923
Confirmed 1/15/1924*


John S. Webster
E.D. Wash.
4/28/1923
Confirmed 1/16/1924*
Robert A. Inch
E.D.N.Y.
4/23/1923
Confirmed 1/8/1924
William E. Baker
N.D. W. Va.
4/4/1921
Confirmed 5/3/1921
Claude Z. Luse
W.D. Wis.
4/1/1921
Confirmed 4/27/1921
Woodrow Wilson (1913-21)
Finis J. Garrett
W.D. Tenn.
11/22/1920
No action
taken on
nomination 12/7/1920
Thomas G. Haight
3d Cir.
4/1/1919
Confirmed 6/24/1919
James C. Wilson
N.D. Tex.
3/5/1919
Confirmed 6/24/1919
Tillman Johnson
D. Utah
11/2/1915
Confirmed 1/18/1916
Samuel Alschuler
7th Cir.
8/16/1915
Confirmed 1/18/1916
Joseph T. Johnson
W.D.S.C.
3/9/1915
Confirmed 1/24/1916
Rhydon M. Call
S.D. Fla.
3/26/1913
Confirmed 4/24/1913
William H. Taft (1909-13)
John M. Cheney
S.D. Fla.
8/26/1912
Recess appointment expired 3/9/1913


Clinton W. Howard
W.D. Wash.
8/26/1912
Recess appointment expired 3/4/1913
Clarence J. Roberts
D.N.M.
9/15/1910
Confirmed 12/19/1910
Edmund C. Abbott
D.N.M.
7/5/1910
Recess commission never issued
Oscar R. Hundley
N.D. Ala.
3/6/1909
Recess appointment expired 5/24/1909
Milton D. Purdy
D. Minn.
3/6/1909
Resigned without confirmation 5/1/1909
Theodore Roosevelt (1901-09)
Milton D. Purdy
D. Minn.
7/6/1908
Recess appointment expired 3/3/1909*
Oscar R. Hundley
N.D. Ala.
5/30/1908
Recess appointment expired 3/3/1909*
John E. Sater
S.D. Ohio
5/30/1908
Confirmed 3/1/1909
Josiah A. Van Orsdel
D.C. Cir.
11/14/1907
Confirmed 12/12/1907
Ralph E. Campbell
E.D. Okla.
11/11/1907
Confirmed 1/13/1908


John H. Cotteral
W.D. Okla.
11/11/1907
Confirmed 1/13/1908
Walter C. Noyes
2d Cir.
9/18/1907
Confirmed 12/10/1907
William B. Sheppard
N.D. Fla.
9/4/1907
Confirmed 5/20/1908
Henry G. Ward
2d Cir.
5/18/1907
Confirmed 12/17/1907
Oscar R. Hundley
N.D. Ala.
4/9/1907
Recess appointment expired 5/30/1908*
William C. Van
Fleet
N.D. Cal.
4/2/1907
Confirmed 12/17/1907
Frank S. Dietrick
D. Idaho
3/19/1907
Confirmed 12/17/1907
John E. Sater
S.D. Ohio
3/18/1907
Recess appointment expired
William C. Van Fleet
N.D. Cal.
3/4/1907
Cancelled, but no date
given
James L. Martin
D. Vt.
10/20/1906
Confirmed 12/11/1906
Charles H. Robb
D.C. Cir.
10/5/1906
Confirmed 12/11/1906
Joseph Buffington
3d Cir.
9/25/1906
Confirmed 12/11/1906
Nathaniel Ewing
W.D. Pa.
9/25/1906
Confirmed 12/11/1906
Charles E.
Wolverton
D. Ore.
11/20/1905
Confirmed 1/15/1906
Louis E. McComas
D.C. Cir.
6/26/1905
Confirmed 12/6/1905
William W. Cotton
D. Ore.
6/17/1905
Declined appointment
Elmer B. Adams
8th Cir.
5/20/1905
Confirmed 12/12/1905
Gustavus Finkelnburg
E.D. Mo.
5/20/1905
Confirmed 12/12/1905
William M. Lanning
D.N.J.
6/1/1904
Confirmed 12/13/1904*
George W. Ray
N.D.N.Y.
9/12/1902
Confirmed 12/8/1902*
Henry C. McDowell
W.D. Va.
11/12/1901
Confirmed 12/18/1901*
Thomas G. Jones
N.D. Ala. & M.D. Ala.
10/7/1901
Confirmed 12/17/1901*
William McKinley (1897-1901)
George B. Adams
S.D.N.Y.
8/30/1901
Confirmed 12/17/1901*
Benjamin F. Keller
S.D. W. Va.
6/18/1901
Confirmed 12/17/1901*
Andrew McConnell January Cochran
E.D. Ky.
4/24/1901
Confirmed 12/17/1901*
Robert W. Archbald
M.D. Pa.
3/29/1901
Confirmed 12/17/1901*
Jacob Trieber
E.D. Ark.
7/26/1900
Confirmed 1/9/1901*
James E. Boyd
W.D.N.C.
7/11/1900
Confirmed 1/9/1901*
Hamilton G. Ewart
W.D.N.C.
4/13/1899
Recess appointment expired 6/7/1900
George Gray
3d Cir.
3/29/1899
Confirmed 12/18/1899*


Albert C. Thompson
S.D. Ohio
9/23/1898
Confirmed 12/20/1898*
Hamilton G. Ewart
W.D.N.C.
7/13/1898
Recess appointment expired 3/3/1899*
Edward R. Meek
N.D. Tex.
7/13/1898
Confirmed 2/15/1899*
Grover Cleveland (1893-97)
John H. Rogers
W.D. Ark.
11/27/1896
Confirmed 12/15/1896*
Andrew Kirkpatrick
D.N.J.
11/20/1896
Confirmed 12/15/1896*
William D. McHugh
D. Neb.
11/20/1896
Nomination withdrawn 2/1/1897
Arthur L. Brown
D.R.I.
10/15/1896
Confirmed 12/15/1896*
Charles F. Amidon
D.N.D.
8/31/1896
Confirmed 2/18/1897*
John E. Carland
D.S.D.
8/31/1896
Confirmed 12/15/1896*
Elmer B. Adams
E.D. Mo.
5/17/1895
Confirmed 12/9/1895*
Martin F. Morris
D.C. Cir.
4/15/1893
Unavailable
Benjamin Harrison (1889-93)
William W. Morrow
N.D. Cal.
9/18/1891
Confirmed 1/11/1892*
John S. Woolson
S.D. Iowa
8/14/1891
Confirmed 1/11/1892*
Henry C. Niles
S.D. Miss. &
N.D. Miss.
8/11/1891
Confirmed 1/11/1892*


James H. Beatty
D. Idaho
3/7/1891
Confirmed 2/4/1892*
Alonzo J. Edgerton
D.S.D.
11/19/1889
Confirmed 1/16/1890*
Edward T. Green
D.N.J.
10/24/1889
Confirmed 1/27/1890*
Augustus J. Ricks
N.D. Ohio
7/1/1889
Confirmed 1/16/1890
Charles Swayne
N.D. Fla.
5/17/1889
Confirmed 4/1/1890*
Grover Cleveland (1885-89)
Emile H. Lacombe
2d Cir.
5/26/1887
Confirmed 2/28/1888*
William J. Allen
S.D. Ill.
4/18/1887
Confirmed 1/19/1888*
Charles H.
Simonton
E.D.S.C. &
W.D.S.C.
9/3/1886
Confirmed 1/13/1887*
William T. Newman
N.D. Ga.
8/13/1886
Confirmed 1/13/1887*
William M. Merrick
D.D.C.*
5/1/1885
Confirmed 3/30/1886*
Chester A. Arthur (1881-85)
Walter Q. Gresham
7th Cir.
10/28/1884
Confirmed 12/9/1884*
William A. Woods
D. Ind.
5/2/1883
Confirmed 1/7/1884*
George R. Sage
S.D. Ohio
3/20/1883
Confirmed 1/7/1884*
James A. Garfield (1881)
Addison Brown
S.D.N.Y.
6/2/1881
Confirmed 10/14/1881*


Alexander Boarman
W.D. La.
5/18/1881
Unavailable

Rutherford B. Hayes (1877-81)
Ezekiel B. Turner
W.D. Tex.
11/18/1880
Confirmed 12/20/1880*
William H. Hays
D. Ky.
9/6/1879
Confirmed 12/10/1879*
Ulysses S. Grant (1869-77)
Alexander S.
Johnson
2d Cir.
10/25/1875
Confirmed 12/15/1875*
Martin Welker
N.D. Ohio
11/25/1873
Confirmed 12/8/1873*
Nathaniel Shipman
D. Conn.
4/16/1873
Confirmed 12/8/1873*
John M. McKinney
S.D. Fla.
11/8/1870
Confirmed 2/18/1871*
Joel C.C. Winch
E.D. Tex.
10/11/1870
Recess appointment expired 3/4/1871
John P. Knowles
D.R.I.
10/9/1869
Confirmed 1/24/1870*
James M. Clarke
D.R.I.
9/15/1869
Declined appointment
Walter Q.
Gresham
D. Ind.
9/1/1869
Confirmed 12/21/1869*
Andrew Johnson (1865-69)
Samuel Blatchford
S.D.N.Y.
5/3/1867
Confirmed 7/16/1867*
George W. Brooks
E.D.N.C.
8/19/1865
Confirmed 1/22/1866*


John Erskine
S.D. Ga.
7/10/1865
Confirmed 1/22/1866*
Robert P. Dick
W.D.N.C.
5/29/1865
Declined appointment
Abraham Lincoln (1861-65)
Richard Busteed
N.D. Ala. &
S.D. Ala. &
M.D. Ala.
11/17/1863
Confirmed 1/20/1864*
Thomas J. Boynton
S.D. Fla.
10/19/1863
Confirmed 1/20/1864*
Mark W. DeLahay
D. Kan.
10/6/1863
Confirmed 3/15/1864*
William Lawrence
S.D. Fla.
9/9/1863
Declined appointment
John A. Bingham
S.D. Fla.
6/4/1863
Recess appointment expired 7/4/1864
Edward H. Durell
E.D. La.
5/20/1863
Confirmed 2/17/1864*
John C. Underwood
E.D. Va.
3/27/1863
Confirmed 1/25/1864*
David Davis
S. Ct.
10/17/1862
Confirmed 12/8/1862*
Bland Ballard
D. Ky.
10/16/1861
Confirmed 1/22/1862*
James Buchanan (1857-61)
William G. Jones
S.D. Ala. &
N.D. Ala. &
M.D. Ala.
9/29/1859
Confirmed 1/30/1860*


Franklin Pierce (1853-57)
James Dunlop
D.C. Cir.
(Chief Judge)

11/27/1855
Confirmed 12/7/1855*
George W. Hopkins
D.C. Cir.

10/5/1855
Recess appointment expired 8/30/1856
James M. Love
S.D. Iowa
10/5/1855
Confirmed 2/25/1856*
William F. Giles
D. Md.
7/18/1853
Confirmed 1/11/1854
Millard Fillmore (1850-53)
Benjamin R. Curtis
S. Ct.
9/22/1851
Confirmed 12/20/1851*
Zachary Taylor (1849-50)
Daniel Ringo
E.D. Ark. &
W.D. Ark.
11/5/1849
Confirmed 5/10/1850*
Henry Boyce
W.D. La.
5/9/1849
Confirmed 8/2/1850*
James K. Polk (1845-49)
James Dunlop
D.C. Cir.
10/3/1845
Confirmed 2/3/1846*
Levi Woodbury
S. Ct.
9/20/1845
Confirmed 1/3/1846*
John Tyler (1841-45)
None



W.H. Harrison (1841)
None





Martin Van Buren (1837-41)
Robert B. Gilchrist
E.D.S.C. &
W.D.S.C.
10/30/1839
Confirmed 2/17/1840*
John C. Nicoll
N.D. Ga. &
S.D. Ga.
5/11/1839
Confirmed 2/17/1840*
John McKinley
S. Ct.
4/22/1837
Confirmed 9/25/1837*
Andrew Jackson (1829-37)
Jesse L. Holman
D. Ind.
9/16/1835
Confirmed 3/29/1836*
Benjamin Tappan
D. Ohio
10/12/1833
Rejected 12/26/1833
Thomas Irwin
W.D. Pa.
4/14/1831
Confirmed 3/21/1832*
Mathew Harvey
D.N.H.
11/2/1830
Confirmed 12/16/1830*
Philip P. Barbour
E.D. Va.
10/8/1830
Confirmed 12/16/1830*
John Q. Adams (1825-29)
William Creighton, Jr.
D. Ohio
11/1/1828
Recess appointment expired 12/31/1828
Joseph Hopkinson
E.D. Pa.
10/23/1828
Confirmed 2/23/1829*
William Rossell
D.N.J.
11/10/1826
Confirmed 12/19/1826*
John Boyle
D. Ky.
10/20/1826
Confirmed 2/12/1827*
Alfred Conkling
N.D.N.Y.
8/27/1825
Confirmed 12/14/1825*


George Hay
E.D. Va.
7/5/1825
Confirmed 3/31/1826*
James Monroe (1817-25)
Elias Glenn
D. Md.
8/31/1824
Confirmed 1/3/1825*
John Pitman
D.R.I.
8/4/1824
Confirmed 1/3/1825*
Smith Thompson
S. Ct.
9/1/1823
Confirmed 12/9/1823*
Peter Randolph
D. Miss.
6/25/1823
Confirmed 12/9/1823*
Willard Hall
D. Del.
5/6/1823
Confirmed 12/9/1823*
Jeremiah Cuyler
D. Ga.
6/12/1821
Confirmed 1/10/1822*
Thomas U.P.
Charlton
D. Ga.
5/15/1821
Unavailable
Roger Skinner
N.D.N.Y.
11/24/1819
Confirmed 1/5/1820*
Theodorick Bland
D. Md.
11/23/1819
Confirmed 1/5/1820*
James Madison (1809-17)
William S.
Pennington
D.N.J.
6/19/1815
Confirmed 1/9/1816*
Theodore Gaillard
D. La.
4/13/1813
Unavailable
Thomas Jefferson (1801-09)
Henry B.
Livingston
S. Ct.
11/10/1806
Confirmed 12/17/1806*
Matthias B.
Tallmadge
N.D.N.Y.
6/12/1805
Confirmed 12/23/1805*


Henry B.
Livingston
D.N.Y.
5/16/1805
Recess appointment expired 4/21/1806
William Stephens
D. Ga.
10/22/1801
Confirmed 1/26/1802*
Dominick A. Hall
5th Cir.
7/1/1801
Confirmed 1/26/1802*
Theodore Gaillard
5th Cir.
5/30/1801
Unavailable
Henry Potter
5th Cir.
5/9/1801
Confirmed 1/26/1802*
David L. Barnes
D.R.I.
4/30/1801
Confirmed 1/26/1802*
William Kilty
D.C. Cir.
3/23/1801
Confirmed 1/26/1802*
John Adams (1797-1801)
James Winchester
D. Md.
10/31/1799
Confirmed 12/10/1799*
Bushrod Washington
S. Ct.
9/29/1798
Confirmed 12/20/1798*
George Washington (1789-97)
Benjamin Bourne
D.R.I.
10/13/1796
Confirmed 12/22/1796*
Joseph Clay, Jr.
D. Ga.
9/16/1796
Confirmed 12/27/1796*
John Rutledge
S. Ct.
7/1/1795
Rejected 12/15/1795
Samuel Hitchcock
D. Vt.
9/3/1793
Confirmed 12/30/1793*
Thomas Johnson
S. Ct.
8/5/1791
Confirmed 11/7/1791*


William Lewis
D. Pa.
7/14/1791
Confirmed 11/7/1791*
Robert Morris
D.N.J.
8/28/1790
Confirmed 12/20/1790*
William Paca
D. Md.
12/22/1789
Confirmed 2/10/1790*
Cyrus Griffin
D. Va.
11/28/1789
Confirmed 2/10/1790*

Number of Judicial Recess Appointments
by President1

U.S. President
Number of Recess Appoint-ments
Number of Recess Appointments Later Confirmed
George W. Bush (2001-present)
2
N/A
William J. Clinton (1993-2001)
1
1/1
George H.W. Bush (1989-93)
0
N/A
Ronald W. Reagan (1981-89)
0
N/A
Jimmy Carter (1977-81)
1
0/1
Gerald R. Ford (1974-77)
0
N/A
Richard M. Nixon (1969-74)
0
N/A
Lyndon B. Johnson (1963-69)
4
3/4
John F. Kennedy (1961-63)
25
25/25
Dwight D. Eisenhower (1953-61)
27
26/27
Harry S. Truman (1945-53)
37
32/37
Franklin D. Roosevelt (1933-45)
15
13/15
Herbert Hoover (1929-33)
8
7/8
Calvin Coolidge (1923-29)
24
22/24
Warren G. Harding (1921-23)
5
5/5
Woodrow Wilson (1913-21)
7
6/7
William H. Taft (1909-13)
5
1/5
Theodore Roosevelt (1901-09)
25
21/25
William McKinley (1897-1901)
11
9/11
Grover Cleveland (1893-97)
6
6/6
Benjamin Harrison (1889-93)
8
8/8
Grover Cleveland (1885-89)
5
5/5
Chester A. Arthur (1881-85)
3
3/3
James A. Garfield (1881)
1
1/1
Rutherford B. Hayes (1877-81)
2
2/2
Ulysses S. Grant (1869-77)
7
6/7
Andrew Johnson (1865-69)
3
3/3
Abraham Lincoln (1861-65)
8
7/8
James Buchanan (1857-61)
1
1/1
Franklin Pierce (1853-57)
4
3/4
Millard Fillmore (1850-53)
1
1/1
Zachary Taylor (1849-50)
2
2/2
James K. Polk (1845-49)
2
2/2
John Tyler (1841-45)
0
N/A
W.H. Harrison (1841)
0
N/A
Martin Van Buren (1837-41)
3
3/3
Andrew Jackson (1829-37)
5
4/5
John Q. Adams (1825-29)
6
5/6
James Monroe (1817-25)
8
8/8
James Madison (1809-17)
1
1/1
Thomas Jefferson (1801-09)
8
7/8
John Adams (1797-1801)
2
2/2
George Washington (1789-97)
9
8/9

1 This table does not include: (1) nominees who declined the appointment; (2) those for whom the recess commission was never issued or the nomination was withdrawn or cancelled before the Senate had an opportunity to act; and (3) those as to whom it
was unclear whether the commission was issued or accepted or whether the nominee was subsequently confirmed. Judge Walter M. Heen (appointed Dec. 31, 1980) is included in this table because he continued to preside over cases after President Reagan withdrew his nomination on Jan. 22, 1981.