In the history of the United States, there have been approximately 32 unsuccessful recess appointments to United States federal courts.[1] 22 individuals have been appointed to a United States federal court through a recess appointment who were thereafter rejected by the United States Senate when their name was formally submitted in nomination, either by a vote rejecting the nominee, or by the failure of the Senate to act on the nomination. These individuals served as federal judges, having full authority to hold office and issue rulings, until their rejection by the Senate. Five individuals were appointed but resigned either before the Senate voted on their nomination, or before a formal nomination was even submitted. Another five individuals were appointed but never assumed the office.
Article II, Section 2, Clause 3 of the United States Constitution states:
The President shall have 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.
The president may fill critical federal executive and judicial branch vacancies unilaterally but temporarily when the Senate is in recess, and thus unavailable to provide advice and consent. Such appointments expire at the end of the next Senate session. To continue to serve thereafter, the appointee must be formally nominated by the president and confirmed by the Senate.[2]
John Rutledge, appointed by George Washington was the first recess appointment to be rejected by the Senate, and the only recess appointee to the Supreme Court of the United States to be rejected. Washington appointed Rutledge on July 1, 1795, but because of Rutledge's political views and occasional mental illness, the Senate rejected his nomination December 15, 1795. Rutledge subsequently attempted suicide, and then resigned on December 28, 1795. The 4th United States Congress remained in session until June 1, 1796, so Rutledge could have remained on the Court until then, but chose not to.
Wallace McCamant, appointed by Calvin Coolidge on May 25, 1925, to the United States Court of Appeals for the Ninth Circuit, was the lone recess appointment to a United States Court of Appeals to be rejected by the Senate. The Senate rejected his nomination on March 17, 1926, and he resigned on May 2, 1926.[3]
In total, fourteen presidents have had recess appointments rejected. William Howard Taft - who only made six recess appointments to the federal bench - experienced the largest number of rejected recess appointments, with three. Harry S. Truman - who made a record 38 such appointments - also had three recess appointments rejected, but one of those was later reappointed and confirmed. Taft had also used recess appointments to reappoint two judges whose recess appointments by Theodore Roosevelt had been rejected; both appointees resigned from their positions before their names were formally submitted into nomination.
Recess appointees to the United States district courts not subsequently confirmed by the Senate are as follows:
| Judge | Court | Appointing President |
Began active service |
Ended active service |
Notes |
|---|---|---|---|---|---|
| John Moses Cheney | S.D. Fla. | Taft | August 26, 1912 | March 3, 1913 | Congress adjourned without acting on the nomination. |
| William Creighton, Jr. | D. Ohio | J.Q. Adams | November 1, 1828 | February 16, 1829 | Congress adjourned without acting on the nomination. |
| Hamilton G. Ewart | W.D.N.C. | McKinley | July 16, 1898 April 14, 1899 |
March 4, 1899 June 7, 1900 |
Received consecutive recess appointments to the same court; on both occasions, Congress adjourned without acting on the nomination. |
| John Feikens | E.D. Mich. | Eisenhower | October 13, 1960 | September 27, 1961 | Congress adjourned without acting on the nomination. Renominated to the same court by John F. Kennedy, but the nomination was withdrawn; again renominated by Richard Nixon, on October 7, 1970, to a different seat on the same court, and confirmed by the United States Senate on November 25, 1970, receiving his commission on December 1, 1970; took senior status on March 1, 1986. |
| Monroe Mark Friedman | N.D. Cal. | Truman | July 17, 1952 | July 24, 1953 | Nomination withdrawn prior to Senate action. |
| Roy Winfield Harper | W.D. Mo. | Truman | August 7, 1947 December 20, 1947 |
December 19, 1947 June 22, 1948 |
Received three consecutive recess appointments to the same court; on the first two occasions, Congress adjourned without acting on the nomination, but confirmed the third recess appointment; thereafter served as an active judge until January 5, 1971, and in senior status until his death on February 13, 1994. |
| Walter Meheula Heen | D. Haw. | Carter | January 1, 1981 | December 16, 1981 | Nomination withdrawn (by President Reagan) prior to Senate action. |
| Jesse Smith Henley | E.D. Ark. | Eisenhower | October 25, 1958 | September 11, 1959 | On August 18, 1959, before the recess appointment expired, Eisenhower re-nominated Henley to a different seat on the Eastern and Western District of Arkansas; confirmed by the Senate on September 2, 1959, and received his commission on September 8, 1959 - three days before the expiration of his recess appointment; thereafter served on the District Court until March 24, 1975, and was then elevated to the Eighth Circuit. |
| Clinton Woodbury Howard | W.D. Wash. | Taft | August 26, 1912 | March 3, 1913 | Congress adjourned without acting on the nomination. |
| Oscar Richard Hundley | D. Ala. | T. Roosevelt | April 9, 1907 May 30, 1908 |
May 30, 1908 March 3, 1909 |
Received three consecutive recess appointments to the same court, two from Roosevelt and the third from William Howard Taft; on the first two occasions, Congress adjourned without acting on the nomination; resigned after the third recess appointment, with his name not having formally been put into nomination. |
| George E. Q. Johnson | N.D. Ill. | Hoover | August 3, 1932 | March 3, 1933 | Formally rejected by the Senate. |
| William Douglas McHugh | D. Neb. | Cleveland | November 20, 1896 | February 1, 1897 | Nomination withdrawn prior to Senate action. |
| Philip C. Pendleton | W.D. Va. | J.Q. Adams | May 6, 1825 | July 29, 1825 | Resigned before he was formally nominated to the office, and was therefore never considered by the United States Senate. |
| Charles W. Pickering | Fifth Circuit | G.W. Bush | January 16, 2004 | December 8, 2004 | Formally nominated on January 7, 2003, but resigned prior to action by Congress on the nomination. |
| Milton D. Purdy | D. Minn. | T. Roosevelt | July 6, 1908 | March 3, 1909 | Congress adjourned without acting on the nomination; received a second recess appointment to the same seat from President William Howard Taft on March 6, 1909, but resigned on May 1, 1909, with his name not having formally been put into nomination. |
| David Rabinovitz | W.D. Wis. | L.B. Johnson | January 7, 1964 | October 3, 1964 | Congress adjourned without acting on the nomination. |
| Floyd H. Roberts | W.D. Va. | F. Roosevelt | July 6, 1938 | February 6, 1939 | Formally rejected by the Senate. |
| Richard Elihu Sloan | D. Ariz. | Taft | December 3, 1912 | March 3, 1913 | Congress adjourned without acting on the nomination. |
| Carroll O. Switzer | S.D. Iowa | Truman | October 21, 1949 | August 9, 1950 | Formally rejected by the Senate. |
| Benjamin Tappan | D. Ohio | Jackson | October 12, 1833 | May 29, 1834 | Formally rejected by the Senate. |
| William Josiah Tilson | M.D. Ga. | Coolidge | June 6, 1926 | March 4, 1927 | Received a second recess appointment to a different seat on the same court on March 5, 1927, but resigned on March 19, 1928, with his name not having formally been put into nomination. |
| Joel C. C. Winch | E.D. Tex. | Grant | October 11, 1870 | March 3, 1871 | Congress adjourned without acting on the nomination. |