Today in Supreme Court History: August 12, 1795

8/12/1795: Chief Justice John Rutledge takes judicial oath.

Chief Justice John Rutledge

 

Comments

[Dan Schiavetta]

Chrysafis v. Marks, 141 S.Ct. 2482 (decided August 12, 2021): Court stays New York's Covid eviction moratorium statute; holds that landlords must be given chance to challenge tenants' self-certification of hardship (issue became moot three weeks later when statute was revised to allow challenge)
(see Josh's post on this decision, https://reason.com/volokh/2021/08/13/making-sense-of-chrysafis-v-marks/)

[DWB]

I have plans to go see his house this weekend (it is now an inn.)

[Mr. Bumble]

Let us know if the tour went woke.

[The Margrave of Azilia]

Wikipedia says a couple of slaves saved his life when he tried to drown himself. Of course, a totally woke presentation would say the slaves were wasting their effort.

[The Margrave of Azilia]

An argument against "recess appointments" for federal judges. If they're entitled to good-behavior tenure, and a recess appointment is only until the Senat has a chance to act, then there's a conflict between those different parts of the Constitution. The provision protecting judicial tenure should prevail, meaning the Pres. can't be allowed to unilaterally give temporary appointments to judicial posts.

Just my 2 centavos.

[F.D. Wolf]

A recess appointment does neither requires nor triggers Senate action, but automatically expires at the end of the next session of the Senate. No Senate action can shorten the term.

In the case of Rutledge, President Washington recess-appointed him on August 12, 1795. He formally submitted his regular nomination on December 10. The Senate rejected the formal nomination on December 14. Rutledge resigned on December 28, though he would have been entitled to keep his position until June 1, 1796, if he had so chosen.

There really isn't a conflict, as even though the Constitution provides a judge with life tenure, it also requires the advice and consent of the Senate. Of all the positions in government, recess appointments may be most justified in the case of judges, because, unlike Cabinet secretaries and ambassadors, for example, there's not really some assistant who can temporarily serve as "Acting Judge", and a courthouse without a judge denies access to justice for the people of the district.

It has been argued for a long time that recess appointments, which may have made sense in 1798 when the Senate was in recess for months at a time and travel to the capital for Senators could take days or even weeks, don't make much sense in modern times. However, in recent years, the Senate has adopted the "pro forma" session and is, in essence, never in recess, so recess appointments are generally impossible anyway.

[F.D. Wolf]

Sorry, I screwed up the timeline. Rutlege received his commission on June 30, 1795, took his judicial oath on August 12, was formally nominated on December 10, and rejected by the Senate on December 15.

[The Margrave of Azilia]

Suppose a controversial case comes up when the guy is waiting for confirmation (back when recesses were really recesses)?

Does he put off deciding - so much for speedy justice!

Or does he close his eyes to Senate reaction and go ahead with a controversial decision? With no conscious or unconscious influences!

[F.D. Wolf]

I think he does his job. A recess-appointed official is just as much an official as a regularly appointed one, with the exception that his term will expire on a date certain.

The last really controversial recess appointment that I recall was President George W. Bush's recess appointment of John Nolton as UN Ambassador. Bush later formally nominated him, but the Senate never took any action on it, so Bolton's term expired on December 31, 2006, after 17 months on the job. (I think Bolton announced he was "resigning" on that date, but his term expired by the terms of the Constitution regardless.)

[The Margrave of Azilia]

"I think he does his job."

So he should. But in the context we're discussing, he doesn't have the good-behavior tenure which would fortify his doing his job.

[F.D. Wolf]

That is true, but consider that lifetime tenure is unique to the federal courts (and a terrible idea IMO, anachronistic even in 1787, but I digress). State judges in all 50 states serve finite terms and are subject to re-election or some form of review and re-appointment. Yet judges in these systems manage to function, despite the risk of antagonizing the voters, governor, legislature (or whichever party they answer to).

I certainly see what you're saying. A judge might be put in a position to think to himself, "If I vote this way, then this 18-month job probably won't become a lifetime one." But one might suggest that's as much an argument against lifetime tenure as for it, for example, possibly affecting the rulings of lower-court judges who are bucking for a promotion up the chain.

That is similar to what happened to Rutledge. He received his commission from President Washington on June 30. On July 16, he gave a highly inflammatory speech denouncing Jay's Treaty. Had he not made that speech, he almost certainly would have been confirmed. (Ultimately, it was best he was not confirmed. Rutledge had been a brilliant man and an important Founding Father. But he was, in retrospect, clearly beginning to suffer from mental illness, his lack of judgment in making such a speech, perhaps some early evidence.)

[The Margrave of Azilia]

I still see a conflict between the good-behavior clause applying to judges and the recess-appointment clause applying to all officials.

Carrying out the recess-appointments clause for judges carves out an exception from the good-behavior clause.

While fully carrying out the good-behavior clause would carve out a judicial exception to the recess-appointments clause, seemingly stopping the President from recess-appointing federal judges.

It's necessary to choose one horn of the dilemma or the other, and the only reason I would accept the possibility of recess-appointing a judge is that Washington did it, and without him there would be no Constitution to interpret in the first place, and no country to have a constitution of.

But that's not to say Washington applied the Constitution the right way all the time. Just that he gets more of a benefit of the doubt than some other rando President.

[F.D. Wolf]

I note another relatively modern recess appointment as interesting, at least as trivia - that of Lawrence Eagleburger as Secretary of State.

President George H. W. Bush's Secretary of State, James Baker, resigned in 1992 to manage Bush's ultimately unsuccessful re-election campaign. Bush named Deputy Secretary of State Eagleburger as Acting Secretary of State on August 23. Bush, of course, lost the November election, and, on December 8, recess-appointed Eagleburger as Secretary of State, a position he would hold for the last 43 days of the Bush administration, the third-shortest tenure in the history of the office.

[Dan Schiavetta]

I remember Eagleburger’s crestfallen face when he was questioned on the Sunday TV shows about the Bush campaign’s release of confidential documents concerning Bill Clinton’s draft history. You could tell he was embarrassed — for which I give him credit as someone with a sense of professional responsibility.

[F.D. Wolf]

I guess President Clinton should have raided Bush's home (just a little joke).

I do not doubt you at all, but I must confess I wasn't much paying attention to politics and current events around that time. I was a college freshman whose main focus was on drinking.

I don't think we would agree an awful lot on contemporary politics, but I do appreciate your posts and insights.

[Dan Schiavetta]

Thanks very much!

I remember the TV interview and I even remember where I was at the time, house sitting for a friend of mine.

I was also nauseated, not by any political misdoings, but because my high school’s teams were called the Eagles, and the cafeteria served an “Eagleburger” which was . . . bleahh . . .

[CJColucci]

Too small for a nation, too large for an insane asylum.

[Sebastian Cremmington]

…Condo Association

[The Margrave of Azilia]

The thing about an insult is it has to be comprehensible, otherwise what's the point?