Ignoring Advice and Consent? The Uses of Judicial Recess Appointments

Graves, Scott E.; Howard, Robert M.

doi:10.1177/1065912909333129

Cited by 3 publications

(3 citation statements)

References 29 publications

(36 reference statements)

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“…This argument is consistent with work by Graves and Howard (2010) who find that recess appointments for judges is in part a function of the “activeness” of a President, measured by the number of executive orders a President issues in a term.…”

supporting

confidence: 89%

No vacancy: holdover capacity and the continued staffing of major commissions

Madonna¹,

Ostrander

2016

J. Pub. Pol.

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Although the United States (US) federal bureaucracy is plagued by high vacancy rates generally, quorum requirements and small board sizes make vacancies particularly problematic within major independent regulatory commissions. Not all vacancies, however, are created equal. By statute, some major boards allow members to continue serving beyond their original term in the absence of a confirmed replacement. The difference between an empty seat and a holdover official is important as it can determine whether a board is functional or inoperable. In this article, we examine how the presence of holdover provisions within such commissions alters confirmation dynamics and vacancy rates. Evidence suggests that holdover provisions lead to quicker confirmation on nominations as well as fewer complete vacancies. Such structures thus help mitigate the short-term problems stemming from staffing independent regulatory boards, especially given the tendency towards obstruction in the US Senate.

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supporting

confidence: 89%

No vacancy: holdover capacity and the continued staffing of major commissions

Madonna¹,

Ostrander

2016

J. Pub. Pol.

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“…Recess appointments are sometimes viewed as the executive's attempt to circumvent Congress's advice and consent power while Congress in not in session (Hogue, 2017). Due to this characterization, recess appointments have a high potential for abuse and must be closely monitored (Graves & Howard, 2010). There is a correlation between a high number of executive orders and attempted recess appointments (Graves & Howard, 2010).…”

Section: Recess Appointmentsmentioning

confidence: 99%

“…Due to this characterization, recess appointments have a high potential for abuse and must be closely monitored (Graves & Howard, 2010). There is a correlation between a high number of executive orders and attempted recess appointments (Graves & Howard, 2010). Both of these actions show an attempt to bypass congressional powers and may be indicative of an executive overstepping its bounds of power.…”

Section: Recess Appointmentsmentioning

confidence: 99%

Going Nuclear: Rule Manipulation and Judicial Nomination Efficacy

Bopp¹

2019

OJPS

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The growing number of federal judicial vacancies impacts judiciary's ability to efficiently resolve litigation. This impact warrants an investigation of any factor that has the potential to affect the number of vacancies. This paper examines three factors in relation to the federal judicial nomination process. The examination is performed through a statistical analysis of judicial confirmation rates in relation to the elements. The elements of principal concern are: the National Labor Relations Board v. Noel Canning Supreme Court ruling, Harry Reid's 2013 removal of the 60 vote requirement to invoke cloture on a nomination, and the mutable power assigned to blue slips. The data shows a complete stoppage of attempted recess appointments following the Supreme Court ruling. Due to calculated scheduling of pro forma sessions by Congress, there have been no recesses that exceed the necessary time frame established by the Supreme Court to make a recess appointment. The removal of the 60 vote requirement to invoke cloture resulted in a 267% increase in confirmed nominees during the 113th Congress. This increase was not sustained through a divided Senate and executive, and the 115th Congress's confirmation rate does not indicate the trend will continue. However, the data set is currently insufficient to make a final judgement on its impact. Blue slipping, as an uncodified procedure, has a variable influence on judicial nominees. A correlation between the chair of the Senate Judiciary Committee and nominee ideology suggests that chairmen are more likely to expedite the appointment of nominees with ideologies similar to their own.

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