Posted March 25, 2011Recess Appointments Both Accepted, Controversial, Judge Says Griffith Warns Judges Against Applying Personal Views of Justice

March 25, 2011

Recess appointments of federal judges, including Supreme Court justices, have historical and legal precedent, but are not without controversy, Judge Diana Gribbon Motz '68 said Monday at the Law School. Motz, of the 4th U.S. Circuit Court of Appeals, delivered the Ola B. Smith Lecture in Caplin Pavilion.

Judge Diana Gribbon Motz '68

Articles II and III of the Constitution are at the root of constitutional questions about recess appointments, Motz said. Article III provides for lifelong tenure and compensation for federal judges, while Article II deals with recess appointments, which are considered temporary pending Senate confirmation.

Lacking tenure, will these judges also lack independence? Are such appointments constitutional?

"The text simply doesn't yield an obvious answer," Motz said. However, legislative history provides assistance, she said.

Records of the Constitutional Convention and documents such as the Federalist Papers indicate that selection of the federal judiciary was a major concern for the framers, Motz said.

"The convention was split on where to vest the general appointment power, primarily because of the importance attached to the power to appoint judges," she said.

A compromise was reached to allow for executive nomination and Senate approval. But while Article III generated much debate, Article II was ratified with little debate, she said. The lack of debate is telling, Motz said.

"Given their previous extensive debates as to the appointment of judges, it seems unlikely that they would have intended to exclude judges from the recess appointments clause without discussing and explicitly indicating their intention," Motz said.

History also bears out the validity of recess appointments, as throughout American history all three branches of government have accepted that recess appointments are constitutional, she said.

"Beginning with George Washington, almost every president filled judicial vacancies by recess appointments, without suggestion from any quarter that the practice violated the Constitution," Motz said.

By 2000, presidents made more than 300 recess appointments and only 34 were not confirmed by the Senate. However, the constitutionality of recess appointments does not make them wise, Motz said.

After President Dwight Eisenhower's three recess appointments (Supreme Court Chief Justice Earl Warren, and Justices William J. Brennan and Potter Stewart), the Senate Judiciary Committee issued a report saying that recess appointment should only be made under unusual circumstances, Motz said.

"Given the political climate, it seems inconceivable that we will witness a recess appointment of another Supreme Court justice at any time in the foreseeable future," she said.

The current problem is nominees for other judgeships.

"As of February, 100 judgeships to those inferior courts sit vacant and 47 judicial nominees remain in limbo," Motz said. But recess appointments might help break the logjam over pending nominees."

While controversy remains over recess appointments, Motz reminded listeners that these appointments have generally had good results.

"Some of our most distinguished modern-day judges have been recess appointees by both Republican and Democratic presidents," Motz said, citing Eisenhower's appointees as examples.

"Whatever your politics, these are not political hacks," Motz said. 'Rather, all seem to have had no trouble maintaining the appropriate judicial independence."

The Ola B. Smith Lecture is sponsored by the Student Legal Forum and the Virginia Law Review.

Thomas Griffith
Thomas Griffith '85

Judges should apply the law, and not their personal beliefs, when deciding cases, federal appellate judge Thomas Griffith '85 said Tuesday during a Federalist Society talk.

"The job of a judge is a clerical job," said Griffith, who sits on the bench of the U.S. Court of Appeals for the District of Columbia. "A tough clerical job, but it's finding out what values the American people have expressed in law and then applying that."

"Griffith used the analogy as a warning against overreaching by judges. If there are ambiguities [in the Constitution], they don't become license for the judge," Griffith said. "If one cannot find the value choice expressed by using original public meaning as an analysis, then one thing the judge doesn't do is make it up."

"Griffith framed his remarks in response to last year's Harvard University commencement speech by U.S. Supreme Court Justice David Souter. In the speech, Souter rejected constitutional originalism, which he called the fair reading model."

"Griffith said he suspects Souter's argument is a response to Justice Antonin Scalia's support of originalism. He's after Scalia. He's after original public meaning. He doesn't use those words, but I think that's what he's doing."

According to Griffith, Souter said the fair reading model consists of a claimant, either the government asking to exercise more power or a citizen asking for a legal right. Either the facts, based on a fair reading, support the claimant or they do not.

Souter said, "On this view, deciding constitutional cases should be a straightforward exercise of reading fairly and viewing facts objectively."

But Souter argued that the fair reading model can't account for tensions between values, such as the tension between individual liberty and a government's desire for security.

Griffith took issue with the examples Souter used to support his argument: the Pentagon Papers case ( New York Times Co. v. United States), Plessy v. Ferguson and Brown v. Board of Education. These examples do not reveal the shortcomings of an original public meaning" model, Griffith said.

Griffith argued that the original public meaning model can help resolve the tension between the government and the press as argued in New York Times Co. v. United States. Originalism is a boon to someone arguing on behalf of free speech, he said.

"As far as Plessy and Brown are concerned, Griffith said, An originalist approach to the 14th Amendment can explain Brown, and explain it well and actually explain it better that the Warren Court did."

Griffith took comfort in the confirmation hearings of Justices Elena Kagan and Sonia Sotomayor. Neither justice left room for personal interpretation in their definitions of the role of the Supreme Court.

"At the end of the day, what the judge does is apply the law," Kagan said. Sotomayor went further, according to Griffith, citing a portion of her testimony. The job of a judge is to apply the law. It's not the heart that compels conclusions in cases, it's the law," Sotomayor said.

Griffith concluded by defining justices' roles as limited to upholding the law and free from personal views of what constitutes justice.

"I have a sense of what's right and what's wrong and what God's will is, and to the extent that I can [I] try to live that in my life and teach that to my family and in the life of my church, but that's not an inquiry that I ever participate in as a judge — to figure out what is right and what is just. The American people decide that and they put those value choices in law."

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