Peter EVANS, Detree Jordan, Plaintiffs-Appellees, v. Denis STEPHENS, Defendant-Appellant, United States of America, Intervenor.
No. 02-16424.
United States Court of Appeals, Eleventh Circuit.
Oct. 14, 2004.
387 F.3d 1220
CONCLUSION
Sharah‘s murals were school-sponsored expression in a nonpublic forum subject to restriction under Hazelwood—the murals were painted as part of a curricular activity and the public, as well as teachers and students, could have reasonably believed the murals bore the imprimatur of the school. Although Appellees censored Sharah‘s school-sponsored murals on the basis of their religious viewpoint, Hazelwood permits such viewpoint discrimination so long as the school‘s actions are reasonably related to legitimate pedagogical concerns. Here, the school‘s request that Sharah paint over certain parts of her murals was reasonably related to the school‘s interest in avoiding disruption to the learning environment caused by the reaction to the murals. Therefore, I conclude that the school‘s viewpoint-based discrimination, not content-based, was permissible under Hazelwood.
Dovre Christian Jensen, Clark E. Gulley, Foster, Jensen & Gulley, LLC, Norman J. Slawsky, Jacobs, Slawsky & Barnett, P.A., Atlanta, GA, Thomas F. Richardson, Norman Carter Pearson, III, Chambless, Higdon & Carson, LLP, Macon, GA, Laurel E. Henderson, Laurel E. Henderson, P.C., Decatur, GA, for Evans, Jordan, City of Zebulon, GA and Loomis.
Thomas Summers Hale, Scott Wayne Gosnell, Burgess & Hale, L.L.C., Birmingham, AL, Terry Eugene Williams, Jason C. Waymire, Terry E. Williams & Associates, Lawrenceville, GA, Mark R. Brown, Capital University Law School, Columbus, OH, Thomas C. Goldstein, Amy Howe, Goldstein & Howe, P.C., Stuart J. Roth, Jay Alan Sekulow, American Center for Law & Justice, Richard A. Samp, Washington Legal Foundation, Washington, DC, Scott Dewitt Delius, Delius Law Firm, P.C., Atlanta, GA, A. Jonathan Trafimow, Robert S. Groban, Jr., Epstein, Becker & Green, P.C., New York City, Martin S. Lederman, Bethesda, MD, Laurence Henry Tribe, Harvard Law School, Cambridge, MA, for Alabama Municipal Ins. Corp., Alabama League of Municipalities, Russell Gosnell, ACLU of Florida, Inc., Jennie Clouatre, Senator Edward M. Kennedy, Joshua Highfill, Rick Moore, Brian Ausburn, ACLU of Georgia, Inc, ACLU of Alabama, Inc., Janet Hicks, Edwin Meese, American Center for Law and Justice, Washington Legal Foundation and County of Orange in New York, Amici Curiae.
Douglas N. Letter, U.S. Dept. of Justice, Appellate Litigation Counsel, Civ. Div., Washington, DC, for Intervenor.
Before EDMONDSON, Chief Judge, and TJOFLAT, ANDERSON, BIRCH, DUBINA, BLACK, CARNES*, BARKETT, HULL, MARCUS, WILSON and PRYOR*, Circuit Judges.
ORDER
EDMONDSON, Chief Judge:
Between the twelfth and twenty-third of February 2004, the United States Senate took a break in their Session. 150 Cong. Rec. S1414-04 (daily ed. Feb. 12, 2004) (statement of Sen. Frist) (“I wish everyone a safe President‘s Day recess“); 150 Cong. Rec. S1415-02 (daily ed. Feb. 12, 2004) (statement of Sen. Frist) (“the Senate, at 8:49 p.m., adjourned until Monday, February 23, 2004“). During that break, on 20 February 2004, the President appointed William H. Pryor Jr. to the Eleventh Circuit Court of Appeals. The President relied on the Recess Appointments Clause.
The Judicial Branch is the controlling interpreter of how the Constitution applies. But the President, in his capacity as chief executive of this country, is also sworn to uphold the Constitution. And when the President is acting under the color of express authority of the United States Constitution, we start with a presumption that his acts are constitutional.2 See United States v. Allocco, 305 F.2d 704, 713 (2d Cir. 1962) (Recess Appointments Clause case); see also U.S. v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 3105, 41 L.Ed.2d 1039 (1974) (observing “In the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others.“). To be sure, the presumption is a rebuttable one; but the burden is on the challengers to overcome it with their arguments and to persuade us to the contrary. Just to show that plausible interpretations of the pertinent constitutional clause exist other than that advanced by the President is not enough. We are not persuaded that the President acted beyond his authority in this case: both the words of the Constitution and the history of the nation support the President‘s authority.
Recess Appointments to Article III Courts are Allowed
We focus mainly on what the Constitution says and does not say. The text of the United States Constitution authorizes recess appointments of judges to Article III courts.3
History unites with our reading to support our conclusion. As we understand it, beginning with President Washington, over 300 recess appointments to the federal judiciary (including fifteen to the Supreme Court) have been made. Historical evidence of this practice alone might not make the recess appointment constitutional, but this historical practice—looked at in the light of the text of the Constitution—supports our conclusion in favor of the constitutionality of recess appointments to the federal judiciary. See generally Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 3335, 77 L.Ed.2d 1019 (1983) (observing that historical practice of Framers “sheds light” on the intended meaning of constitutional provisions).
Although we see some tension between Article III and the recess appointment of judges to Article III courts, we reject the argument that the language in Article III, saying that judges serve during “good Behaviour” and without a diminished salary, somehow trumps the Recess Appointments Clause. The conflict between these equally important constitutional provisions is not irreconcilable: the temporary judges appointed under the Recess Appointments Clause are an exception to the general rule of Article III. The text of the Recess Appointments Clause refers specifically to “all” vacancies: we accept that the Clause does not leave out Article III judicial vacancies.4
The Constitution, on its face, neither distinguishes nor limits the powers that a recess appointee may exercise while in office. That is, during the limited term in which a recess appointee serves, the appointee is afforded the full extent of authority commensurate with that office.
We accept that it was the intent of the Framers to keep important offices filled and government functioning.5 And while recess appointees may not have every bit of the protection for their independence that regularly confirmed Article III judges have, we accept the Framers thought that what might be intolerable, if prolonged, was acceptable for a relatively short while.6 And, of course, plenty of the judges in this country (for example, state judges) then and now do not have all the protection of Article III judges; yet these courts are not seen to be inherently unfair, and the litigants who appear before them have not been held to have been denied due process on that account. So, we can readily accept that the Framers would tolerate, on a temporary basis, some federal judges who lacked Article III protection.
The Second and Ninth Circuits, in reasoned opinions, have also decided that the Recess Appointments Clause reaches appointments to Article III courts. United States v. Woodley, 751 F.2d 1008 (9th Cir. 1985) (en banc); United States v. Allocco, 305 F.2d 704 (2d Cir. 1962).
“The Recess of the Senate” Includes an Intrasession Recess
Focusing first on the language of the Constitution, and then on the nation‘s history and on the purpose of the Recess Appointments Clause, we also conclude that President Bush appointed Judge Pryor during a legitimate Senate recess, that is, during a “Recess” within the meaning of the Recess Appointments Clause. In this case, the Senate‘s break fits the definition of “recess” in use when the Constitution was ratified: the dictionary definitions that have been called to our attention (or that we have found) did not, for example, speak of a minimum time. See, e.g., A Dictionary of the English Language (1755) (reprinted 1967) (defining “recess” as “retirement; retreat; withdrawing; secession” or “remission and suspension of any procedure“). And the text of the Constitution does not differentiate expressly between inter- and intrasession recesses for the Recess Appointments Clause.
The challengers have used both history and textual analysis to support their contentions that the ten- or eleven-day break in the Senate‘s Session that underlies Judge Pryor‘s appointment was not a “Recess” within the meaning of the Recess Appointments Clause. We have considered all of the arguments. But the arguments are not so strong as to persuade us that the President‘s interpretation is incorrect. For example, we reject the argument that the plain meaning of the phrase, “the Recess of the Senate,” limits the opportunity to make recess appointments to one particular recess: the recess at the end of a Session. We do not agree that the Framers’ use of the term “the” unambiguously points to the single recess that comes at the end of a Session. Instead, we accept that “the Recess,” originally and through today, could just as properly refer
For another example, we are not persuaded by the argument that the Framers’ use, in three other clauses, of the term “Adjournment,” and not “Recess,” necessarily limits the meaning of “Recess” to a particular kind of break: only a break at the end of a Session. Instead of describing a block of time, the term “Adjournment” in the Constitution can be read to signify a parliamentary action: Congress‘s taking or having taken a break. See e.g.,
We know that the Supreme Court has used the term “Adjournment” in a manner that suggests that the word signifies a break period rather than signifying a means by which a break is taken. See Wright v. United States, 302 U.S. 583, 58 S.Ct. 395, 398, 82 L.Ed. 439 (1938). The Supreme Court there was construing the term “Adjournment” for purposes of the Pocket Veto Clause: the question of the meaning of the word “Recess” in the Recess Appointments Clause was not before the Court. We note, however, that even if the Wright Court‘s usage of “Adjournment” and “Recess” were directly applicable here, their usage would suggest that the term “Adjournment” is the formal break occurring at the end of a Session and that a “Recess” is something that can and does occur during a Session. See id. at 398 (noting that a three-day “recess is not an adjournment“). This usage by the Supreme Court tends to support our accepting the President‘s interpretation that a “Recess” includes a break during a Session.
The Constitution, on its face, does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President‘s appointment power under the Recess Appointments Clause. And we do not set the limit today. Although a President has not before appointed a judge to an Article III court during an intrasession recess as short as the one in this case, appointments to other offices—offices ordinarily requiring Senate confirmation—have been made during intrasession recesses of about this length or shorter.8 Furthermore, several times in the past, fairly short intrasession recesses have given rise to presidential appointments of judges to Article III courts.9
“Vacancies” Need Not Arise During the Recess in Order to be Filled
About the phrase in the Recess Appointments Clause that speaks of filling “Vacancies that may happen during the Recess,” we accept this phrase, in context, means that, if vacancies “happen” to exist during a recess, they may be filled on a temporary basis by the President. This view is consistent with the understanding of most judges that have considered the question, written executive interpretations from as early as 1823, and legislative acquiescence. See United States v. Woodley, 751 F.2d 1008, 1012 (9th Cir. 1985) (en banc) (noting that contrary interpretation “conflicts with a common sense reading of the word happen, as well as the construction given to this word by the three branches of our government“); United States v. Allocco, 305 F.2d 704, 709-15 (2d Cir. 1962); see also In re Farrow, 3 F. 112 (N.D. Ga. 1880).
On its face, the phrase is open to more than one interpretation. For example, the word “happen” can be defined as “befall” which has been defined as “happen to be.” Compare 6 Oxford English Dictionary 1096 (2d ed. 1989) (1928) with 2 Oxford English Dictionary at 62. Therefore, the phrase‘s most accepted interpretation (upon which the President has relied and that we too accept) does not contradict the plain meaning rule.
In addition, as we understand the history, early Presidents—when delegates to the Constitutional Convention were still active in government—made recess appointments to fill vacancies that originated while the Senate was in Session. For example, President Washington, during a Senate break in 1789, appointed Cyrus Griffin to fill a judgeship created during a previous Session; and President Jefferson, during a Senate break in 1801, appointed three judges to fill vacancies created during a previous Session.
Congress at least implicitly agrees with this view of recess appointments. See
One Non-Justiciable Issue Is Presented
As judges, we have the authority and duty to construe and to apply the Constitution as it is written. We have done so today to conclude that the Constitution gives to the President the discretionary authority to appoint a judge to fill a vacancy on an Article III court during a ten- or eleven-day, intrasession recess of the Senate.
Plaintiff-appellees seem to go on to contend another thing. They contend that the President misused this discretionary appointment authority in this particular instance because Judge Pryor‘s nomination—before the recess appointment—had been especially controversial and his confirmation had been blocked in the Senate. The argument, as we understand it, is that this specific recess appointment circumvented and showed an improper lack of deference to the Senate‘s advice-and-consent role and, thus, should not be allowed.
This kind of argument presents a political question that moves beyond interpretation of the text of the Constitution and on to matters of discretionary power, comity and good policy. These matters are criteria of political wisdom and are highly subjective. They might be the proper cause for political challenges to the President, but not for judicial decision making: we lack the legal standards—once we move away from interpreting the text of the Constitution—to determine how much Presidential deference is due to the Senate when the President is exercising the discretionary authority that the Constitution gives fully to him.
Conclusion
We are not persuaded the President exceeded his constitutional authority in a way that causes Judge Pryor‘s judicial appointment to be invalid. We conclude that Judge Pryor may sit with this Court lawfully and act with all the powers of a United States Circuit Judge during his term of office.13
BARKETT, Circuit Judge, dissenting1:
The Constitution states that
[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate.
The majority finds, first, that it matters not whether a vacancy happens during a recess, but only that it exist during a recess. Second, the majority says that the President can fill any vacancy that exists during one recess with an appointment made during any subsequent recess.2
I. The Plain Meaning of the Constitution
The first rule of constitutional interpretation is to look to the plain meaning of the Constitution‘s text. Solorio v. United States, 483 U.S. 435, 447, 107 S.Ct. 2924, 97 L.Ed.2d 364 (1987). See also Gibbons v. Ogden, 22 U.S. (9 Wheat) 1, 188, 6 L.Ed. 23 (1824) (“As men, whose intentions require no concealment, generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said.“) (Marshall, C.J.).
Under this rule, the plain meaning of the Recess Appointments Clause directly, expressly, and unambiguously requires that before a vacancy can be filled through the recess appointment power, that vacancy must have occurred during a Senate recess.
The majority argues that the recess power is valid to fill a vacancy already in existence at the time of the recess. According to the majority‘s reading, the Constitution does not say that a vacancy, to be filled, must be created during that recess. See Majority Order at 1226 (“‘Vacancies’ Need Not Arise During the Recess in Order to be Filled“). But that is precisely what the Constitution does say. The Recess Appointments Clause applies only to those “Vacancies that may happen during the Recess of the Senate.”
The plain meaning of the term “happen” seems all the more ineluctable when one
[I]f Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.
Thus, the question of when a vacancy must occur admits of very little ambiguity. Accordingly, the plain meaning rule compels the conclusion that the Constitution means what it says: the recess appointment power of Article II is good only for those vacancies that happen while the Senate is in recess.5
II. The Purpose of the Recess Appointment Power
Determining whether the President can fill a vacancy that did not occur while the Senate was in recess still leaves open the question of when the President can make a recess appointment itself. Contrary to what the majority holds, the Constitution certainly does not endorse the conclusion that the President can fill a vacancy that happens during one recess by making an appointment during a subsequent recess. Where a constitutional provision is unclear or silent on a particular issue, we must
At the time of the founding, the purpose of the Recess Appointments Clause was to enable the President to fill vacancies that arose when the Senate is disabled from acting upon appointments. The Framers’ only known discussion of the Recess Appointments Clause is The Federalist No. 67, by Alexander Hamilton. Hamilton wrote:
The relation in which [the recess appointments] clause stands to the [advice-and-consent clause], which declares the general mode of appointing officers of the United States, denotes it to be nothing more than a supplement to the other, for the purpose of establishing an auxiliary method of appointment, in cases to which the general method was inadequate. The ordinary power of appointment is confined to the President and Senate jointly, and can therefore only be exercised during the session of the Senate; but as it would have been improper to oblige this body to be continually in session for the appointment of officers and as vacancies might happen in their recess, which it might be necessary for the public service to fill without delay, the succeeding clause is evidently intended to authorize the President, singly, to make temporary appointments “during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”
The Federalist No. 67, at 391 (Isaac Kramnick ed., 1987) (emphasis in the original).6 Thus, Hamilton argues, the Framers added the Recess Appointments Clause to the Constitution in order to ensure that the President would be able to fill offices when the Senate was unable to act on the President‘s nominees. Nowhere does Hamilton suggest that the clause was added to allow the President to appoint someone whom the Senate might refuse to confirm.
The leading early nineteenth-century constitutional treatise, Joseph Story‘s Commentaries on the Constitution, reinforces this description of the purpose of the Recess Appointments Clause. Story notes that the recess appointment power was designed to avoid requiring the Senate to be “perpetually in session, in order to provide for the appointment of officers.” As such, Story wrote, the clause was meant simply to further the interests of “convenience, promptitude of action, and general security.”7
Under the majority‘s reading, if the Senate refuses to give its consent to a particular nominee during a particular session, there is nothing to stop a President from waiting not just until the immediately ensuing recess, but also until after the Senate has repeatedly reconvened and recessed before appointing that person through the recess appointment power. There is absolutely no reason why the Senate would not be able to exercise its advice-and-consent role over this long span of time, and yet the majority‘s interpretation gives a President the ability to appoint someone without regard to whether the Senate has in fact been available to consider that nominee. All that a President need worry about, under such a view, is (1) whether the Senate is in town and (2) whether there is a vacancy in a federal office.
This example suffices to show that the majority‘s explanation of the justification of the Recess Appointments Clause—to allow a President to fill vacancies when the Senate cannot act to confirm nominees—bears little or no relation to its reading of the scope of a President‘s recess appointment power. For this reading makes no attempt to limit the use of the recess appointment power to those circumstances in which the Senate is in fact disabled from acting on presidential nominations, even though this is the only conceivable (and indeed the only historical) justification for the recess appointment power. As Hamilton emphasized in The Federalist No. 67, the recess appointment power is “nothing more than a supplement” or “auxiliary” to the “ordinary” and “general mode of appointing officers of the United States,” which is “jointly,” by way of the Senate‘s advice and consent. The Federalist No. 67, at 391 (Isaac Kramnick ed., 1987) (emphasis in the original). The majority‘s decision, however, entails that a President can fill a vacancy at any point in the future when the Senate is not in session. This cannot be correct.
III. Structural Principles and the Separation of Powers
Where a provision of the Constitution is silent on a matter, we must also read that provision so that it will harmonize with other constitutional provisions. See Nevada v. Hall, 440 U.S. 410, 433, 99 S.Ct. 1182, 59 L.Ed.2d 416 (1979) (“[W]hen the Constitution is ambiguous or silent on a particular issue, this Court has often relied on notions of a constitutional plan—the implicit ordering of relationships within the federal system necessary to make the Constitution a workable governing charter and to give each provision within that document the full effect intended by the Framers.“). If the Constitution did not contain any other provisions concerning the appointment of federal officers, it might be possible to conclude with the majority that a President could fill a vacancy created
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.
I do not believe that the Constitution permits a President to frustrate in this way the careful separation of powers intended by the framers. In between a recess during which the vacancy was created and a recess during which it is filled, the Senate would be in active session and would be perfectly capable of carrying out its advice-and-consent responsibilities. There would be no reason why the Senate would not in fact carry out those responsibilities—unless, of course, it chose not to give its consent to a particular candidate. Yet the Senate‘s refusal to consent to a presidential nomination does not justify the President in circumventing the text and structure of the Constitution.
Considering that the Recess Appointments Clause was intended to enable the President to fill vacancies only when the Senate was disabled from acting, and in light of the role that Article II gives the Senate in approving nominations to federal offices, there must be some more meaningful limit on the President‘s power to make a recess appointment than the two the majority proposes (i.e., that the Senate be in recess and that there be a vacancy to fill). The only plausible limit—as well as the most obvious one—is to require the President to fill a vacancy during the same recess in the course of which it happens. This reading is supported not only by considerations of constitutional purpose and structure, but also by the language of the Recess Appointments Clause, which suggests that the context in which the recess appointment power is triggered—the happening of a vacancy during a particular recess—also defines the limits of the recess appointment power. See The Federalist No. 67, at 391 (Isaac Kramnick ed., 1987) (“The time within which the [recess appointment] power is to operate, ‘during the recess of the Senate,’ and the duration of the appointments, ‘to the end of the next session’ of that body, conspire to elucidate the sense of the provision ...“).
IV. Some Additional Considerations
The Second and Ninth Circuits have ruled that the President may use the recess appointment power to fill any vacancy that exists at the time of a particular recess, even if the vacancy did not happen or occur during that same recess. See United States v. Allocco, 305 F.2d 704 (2nd Cir. 1962); United States v. Woodley, 751 F.2d 1008 (9th Cir. 1985). In so finding, Woodley relied essentially upon the reasoning of Allocco, which conceded that its
As an initial matter, while it is proper for an Article III court to consider the range of circumstances that its interpretation of a particular constitutional provision might cover, such consideration cannot displace the obligation to decide concrete “Cases” and “Controversies” in accordance with the plain meaning and purpose of the Constitution. See
In contrast, there is a real, concrete concern that the understanding of the recess appointment power embraced by the majority will allow the President to repeatedly bypass the role the Framers intended the Senate to play in reviewing presidential nominees. Thus, for the reasons discussed above, the reasoning of Allocco and Woodley not only fails to adhere to the text of the Constitution, as Allocco itself acknowledged, but also makes the wrong tradeoff between executive and legislative authority, a tradeoff that comports neither with the purpose of the Recess Appointments Clause nor with the structure of the Constitution.8
Other than Allocco and Woodley, neither of which establishes the governing law of this circuit, the only authority the majority is able to muster for its interpretation is
[p]ayment 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.
The statute goes on to set forth three very limited exceptions to the general prohibition on the payment of salaries to officers appointed in violation of the Recess Appointments Clause.10 But those exceptions do not establish the constitutionality of the majority‘s interpretation: they suggest instead that Congress has simply decided to recognize the reality of an existing (and unconstitutional) practice. The exceptions to the statute only underline that Congress does not have the last word over the constitutionality of the President‘s use of the recess appointment power. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is.“). Moreover, I do not see how these exceptions, which were added to the statute in 1940,11 can be used to tell us anything about the meaning of a constitution framed and ratified in the late 1780s. If anything,
The statute also calls into question the Woodley Court‘s finding, echoed by the majority here, that “there is an unbroken acceptance of the President‘s use of the recess power ... by the three branches of government.” Woodley, 751 F.2d at 1011. Nor is
More to the point, however, even if one accepts at face value the Woodley Court‘s assertion of an “unbroken” history of acceptance, the failure of one branch of government to challenge how another branch understands or applies the Constitution does not render the latter‘s view correct. This is particularly so where the Constitution‘s plain meaning, purpose, and structure all militate against accepting that view. Nor does the failure of litigants to bring constitutional challenges to the executive‘s use of the Recess Appointment Clause tell us anything about what the clause means. Adverse possession is a rule of property law, not constitutional law. There is no statute of limitations for interpreting and enforcing the Constitution. See Freytag v. C.I.R., 501 U.S. 868, 880, 111 S.Ct. 2631, 2639, 115 L.Ed.2d 764 (1991) (finding that “[n]either Congress nor the Executive can agree to waive [the] structural protection” of the Appointments Clause, and that the “structural interests protected by the Appointments Clause are not those of any one branch of Government but of the entire Republic“); I.N.S. v. Chadha, 462 U.S. 919, 942 at n. 13, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983) (rejecting the argument that a law dating back to 1940 is immune to the constitutional scrutiny of courts simply because it was passed by Congress and approved by the President). The President‘s use of the recess appointment power has been challenged on appeal only twice before, in Allocco and Woodley, both of which decisions privileged a supposed history of congressional and judicial acquiescence over the Constitution‘s plain meaning, purpose, and structure. The question of which should prevail—a debatable historical view or the clear import of the Constitution—has never before reached the Supreme Court.
A final observation: by invoking the political question doctrine at the end of its order, the majority conflates the Plaintiff-Appellees’ description of the circumstances of Judge Pryor‘s appointment with the reasons for its unconstitutionality. See Majority Order at 1226-27 (“Plaintiff-Appellees ... contend that the President misused [his] discretionary appointment authority in this particular instance because Judge Pryor‘s nomination—before the recess appointment—had been especially controversial and his confirmation had been blocked in the Senate. The argument, as we understand it, is that this specific recess appointment circumvented, and showed an improper lack of deference to the Senate‘s advice-and-consent role and, thus, should not be allowed.“). I agree that whether the President shows an improper lack of deference to the Senate in any given circumstance might indeed be a political question. But that is not the question we face. We are asked to decide whether the President exceeded his authority by appointing Judge Pryor.12 For
I respectfully dissent.
WILSON, Circuit Judge, dissenting:
I dissent from the majority‘s decision to deny the motion of plaintiffs-appellees to disqualify Judge Pryor. Unlike the majority and Judge Barkett, I would not reach the merits of the issue, and instead would decline to exercise our discretion to entertain the motion. For the reasons that follow, I would certify the question to the Supreme Court.
The motion, which challenges Judge Pryor‘s authority to serve as a Circuit Judge on this Court, argues that his appointment violated the Recess Appointments Clause. Appellate courts have an obligation to review at any point whether they have jurisdiction, Finn v. Prudential-Bache Sec., Inc., 821 F.2d 581, 584-85 (11th Cir. 1987), but as the majority notes, this issue is not jurisdictional. Majority Op. at 1222, n.1. The Supreme Court has held that Appointments Clause objections are “nonjurisdictional” and thus are subject to forfeiture and waiver analysis. Freytag v. Comm‘r of Internal Revenue, 501 U.S. 868, 878, 111 S.Ct. 2631, 2639, 115 L.Ed.2d 764 (1991) (citations omitted). In Freytag, the Supreme Court chose to address the Appointments Clause challenge before it, but never suggested that it was compelled to do so. In fact, the majority characterized its exercise of its discretion in that case as “rare.” Id. at 879, 111 S.Ct. at 2639. Four Justices would not have reached the merits of the claim at all. See id. at 892, 111 S.Ct. at 2646 (Scalia, J., concurring in part and concurring in the judgment, joined by Justices O‘Connor, Kennedy, and Souter).
Other Supreme Court precedent supports the position that challenges to the composition of a court are non-jurisdictional. Recently, the Supreme Court dealt with a challenge to the composition of a Court of Appeals panel in Nguyen v. United States, 539 U.S. 69, 123 S.Ct. 2130, 156 L.Ed.2d 64 (2003). There, non-Article III judges sat on the panels that affirmed the petitioners’ convictions. The Supreme Court exercised its supervisory power to correct the error, but did not consider the claim to be jurisdictional. Id. at 74, 123 S.Ct. at 2134.
Additionally, this Court thrice previously denied leave to file an amicus curiae brief raising the issue of Judge Pryor‘s appointment because the motion to file the brief was untimely. See Adefemi v. Ashcroft, No. 00-15783, United States v. $242,484.00, No. 01-16485, United States v. Drury, No. 02-12942 (11th Cir. June 10, 2004) (en banc orders). If the issue were jurisdictional, we would have been required to address it (with or without the benefit of amicus curiae). Instead, we declined to consider it because it was not raised in the proper fashion, applying ordinary rules of appellate procedure. Because the issue of Judge Pryor‘s appointment is not a jurisdictional one, we are not obligated to address it.1
Another important concern militates against the majority‘s decision to reach the merits of the motion. It is simply inappropriate for the members of a court to sit in judgment of a colleague‘s legitimacy. In the only two courts of appeals decisions addressing the recess appointment of Article III judges, circuit judges reviewed the appointment of district judges. See United States v. Woodley, 751 F.2d 1008 (9th Cir. 1985) (en banc); United States v. Allocco, 305 F.2d 704 (2d Cir. 1962). The mandate to review lower-court judgments is the fundamental characteristic of appellate courts. But it is nearly anathema for circuit court judges to review a colleague‘s legitimacy to sit as a member of their court.3
My specific concern is twofold. First, we risk damaging the collegiality for which this Court is rightly known. Even our most vociferous dissents are critiques of a judge‘s legal reasoning in a particular case, and never (one hopes) devolve into personal rebukes. And while the recess appointment question in the motion before us is, in the strictest sense, a matter of constitutional interpretation that does not depend on the judge involved, it is inescapable that this is not a question we can answer in the abstract. A vote in favor of the legal argument presented in the motion is also a vote against Judge Pryor‘s membership on our Court.4 Moreover, even if such a deci-
Imagine the risk to our collegiality if we granted the motion, but Judge Pryor did not accept our ruling. He might decide to file in the Supreme Court a petition for a writ of mandamus compelling us to restore him to the Court. I should stress that I have no doubt that Judge Pryor would do anything but abide by any decision of this Court, but even the slightest risk that a judge might sue his colleagues should compel us to make every effort to avoid such confrontations. Because it seems impossible to me to avoid the very personal impact of any decision we make, it is neither wise nor prudent for us to make one.
Second, we risk public confidence in the judiciary as an institution. As of September, 2004, Judge Pryor has authored 8 published opinions and 42 nonpublished opinions. As of September 30, 2004, Judge Pryor has participated as a member of a panel in 299 appeals, 40 of which were decided after oral argument. In fact, Judge Pryor has already sat en banc with the full Court and has participated in en banc decisions. Any decision we make on this motion risks undermining public confidence in the Court. On the one hand, if we grant the motion to disqualify Judge Pryor in this case because he was not validly appointed to the Court, we would necessarily imply that he improperly sat in previous cases. This would instantly call into question every one of those decisions. See Nguyen, 539 U.S. at 82-83, 123 S.Ct. at 2138-39 (an improperly constituted court of appeals panel required reversal of conviction, even though opinion affirming conviction was unanimous, and in some circumstances could have been filed by a two-judge quorum). Although it is not unheard of for us to overturn prior decisions, if we granted the motion the public might reasonably wonder why we allowed so many illegitimate decisions to be entered at all.
Conversely, if we deny the motion, the public might reasonably wonder about our motives. I have detailed above the concerns for collegiality that should be present in this case. An observer might assume that a desire to protect collegial relations, or a personal affinity for Judge Pryor developed over the course of his service to our Court, might have weighed in the decision not to remove him. As discussed, the impact of our decision will be very deeply felt by Judge Pryor. Judges are human, and we cannot risk giving the impression that our desire to avoid confrontation and maintain collegiality affected our decision. Because of the problems inherent in sitting in judgment of one‘s colleague, we should avoid imperiling public confidence in the Court.
As a final note, I hasten to add that I do not mean to suggest that no one should answer the difficult constitutional questions arising from recess appointments. I merely submit that in the present case, it should not be this Court. While the common law “rule of necessity” would prevent the Supreme Court from avoiding a decision on the legitimacy of a Justice‘s recess appointment, that rule only applies to courts of last resort or where no judge at all would be available. See United States v. Will, 449 U.S. 200, 212-216, 101 S.Ct. 471, 479-81, 66 L.Ed.2d 392 (1980) (discussing the history and application of the rule of necessity). The rule does not apply when recourse may be had in a higher court. Such is the case before us. The Supreme Court can address the merits of the recess appointment issue free of the concerns facing us if we pass judgment on a colleague. Just as we sit in review of the
In light of the unique—indeed, unprecedented—circumstances of this motion to rule on the legitimacy of a colleague‘s presidential appointment, the most prudent course for us to take is to decline to reach the merits of the motion. Instead, as Judge Barkett suggests, we should certify the question to the Supreme Court pursuant to
No. 04-11497
United States Court of Appeals, Eleventh Circuit.
Oct. 14, 2004.
ASSOCIATION FOR DISABLED AMERICANS, INC., et al., Plaintiffs,