U.S. v. Woodley

• Decision Date: 14 January 1985
• Docket Number: No. 82-1028,82-1028
• Citation: 751 F.2d 1008
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Janet WOODLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1008

751 F.2d 1008

53 USLW 2360

UNITED STATES of America, Plaintiff-Appellee, v. Janet WOODLEY, Defendant-Appellant.

No. 82-1028.

United States Court of Appeals Ninth Circuit.

Argued and Submitted En Banc

Aug. 16, 1984.

Decided Jan. 14, 1985.

Pamela Berman, Honolulu, Hawaii, for plaintiff-appellee.

Robert Erickson, Dept. of Justice, Washington, D.C., for defendant-appellant.

Appeal from the United States District Court for the District of Hawaii.

Before BROWNING, Chief Judge, SNEED, SKOPIL, FLETCHER, FARRIS, ALARCON, POOLE, FERGUSON, NORRIS, REINHARDT, and BEEZER, Circuit Judges.

BEEZER, Circuit Judge:

We take this case en banc to address the constitutionality of a practice followed by the Executive for nearly 200 years. The question before us is whether the President of the United States may constitutionally confer temporary federal judicial commissions during a recess of the Senate pursuant to article II, section 2 of the Constitution.

I

On February 28, 1980, Walter Heen was nominated to fill a judicial vacancy in the United States District Court for Hawaii. The Senate Judiciary Committee began confirmation hearings on his nomination on September 25, 1980. When the Senate recessed on December 16, 1980, testimony and hearings on the nomination were complete, but the nomination did not come before the full Senate for its advice and consent. During the Senate's recess, on December 31, 1980, President Carter conferred a commission on Judge Heen pursuant to the recess appointment clause of article II of the United States Constitution. Heen then took his oath and assumed his duties as district court judge. On January 21, 1981, Heen's nomination was withdrawn by President Reagan. Heen continued sitting as a district judge pursuant to his recess commission until December 16, 1981, when the 97th Congress ended its First Session. ¹

On September 18, 1981, while Heen was sitting out his commission, appellant Janet Woodley was indicted on three counts of narcotics violations. Woodley filed a motion to suppress evidence, which was denied by Heen. Judge Heen then presided over a bench trial on stipulated facts and found Woodley guilty as charged in the indictment.

Woodley appealed the denial of her motion to suppress. A panel of this court raised the issue sua sponte whether Judge Heen could constitutionally preside over Woodley's trial. ² The panel held that he could not and it vacated Woodley's conviction. United States v. Woodley, 726 F.2d 1328, 1339 (9th Cir.1983). The court having convened en banc, United States v. Woodley, 732 F.2d 111 (9th Cir.1984) (order granting rehearing en banc), we hold that the recess appointment clause extends to judicial officers and that a recess appointee to the federal bench can exercise the judicial power of the United States.

II

The recess appointment clause provides that: "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." U.S. Const. art. II, Sec. 2, cl. 3. Article III, in turn, provides in relevant part that: "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office." U.S. Const. art. III, Sec. 1.

Woodley contends that under generally accepted principles of statutory construction, the more specific language of article III governs over the general language of the recess appointment clause. She concludes therefore that article III forbids interim judicial recess appointments. We reject this argument.

The United States Supreme Court has unequivocally stated that "[t]he Constitution ... must be regarded as one instrument, all of whose provisions are to be deemed of equal validity." Prout v. Starr, 188 U.S. 537, 543, 23 S.Ct. 398, 400, 47 L.Ed. 584 (1903). Moreover, while article III speaks specifically about the tenure of federal judges, article II is equally specific in addressing the manner of their appointment. There is therefore no reason to favor one Article over the other.

The language of the recess appointment clause explicitly provides that the President has the power to fill all vacancies during the recess of the Senate. The Federalist papers clarify the meaning of the recess clause, stating that it "is to be considered as supplementary to the [clause] which precedes" and that the vacancies referred to "must be construed to relate to the 'officers' described in the preceding [clause]." The Federalist No. 67, at 455 (A. Hamilton) (J. Cooke ed. 1961). The preceding clause in question provides in relevant part that the President "shall nominate, and by and with the Advice and Consent of the Senate shall appoint ... Judges of the supreme Court, and all other Officers of the United States...." U.S. Const. art. II, Sec. 2, cl. 2 (emphasis added). This language further underscores that there is no basis upon which to carve out an exception from the recess power for federal judges. Particularly relevant in this context is Alexander Hamilton's statement that "[a]s to the mode of appointing the judges: This is the same with that of appointing the officers of the union in general...." The Federalist No. 78, supra, at 522. ³

III

Woodley also argues that there is no historical evidence that the Framers intended the recess provision to apply to the judiciary. This argument is not only refuted by the express language of the recess clause, which, as previously noted, refers to all vacancies, but it is also refuted by legislative history, as well as historical practice, consensus, and acquiescence.

Although the recess appointment clause was adopted without debate, 2 Farrand, Records of the Federal Convention 533, 540 (1911), there is evidence that it was not entirely uncontroversial. Edmund Randolph, the governor of Virginia, initially declined to sign the Constitution, in part because the recess provision gave the Executive the power to confer judicial commissions during the recess of the Senate. 3 Farrand, supra, at 123, 127.

In 1789, shortly after ratification of the Constitution, George Washington, who had served as President of the Constitutional Convention, exercised his power under the recess provision. During the recess between the sessions of the First Congress, he conferred three recess district judge commissions. 30 The Writings of George Washington, 457-58, 473, 485 n. 75 (J. Fitzpatrick ed. 1939). At the time of these appointments, Edmund Randolph and two contributors to The Federalist, Alexander Hamilton and John Jay, served as members of President Washington's Cabinet. There is no evidence that they doubted the constitutionality of the recess appointments. ⁴ Moreover, the district court judges were confirmed upon the return of the Senate without objection to their recess appointments. 1 Executive Journal of the Senate 38, 40 (1790). It is further noteworthy that President Washington's recess appointments of Justice Johnson in 1791 and of Chief Justice Rutledge in 1795 went unchallenged. ⁵ One commentator has aptly noted that "the most significant historical fact is that by the end of 1823, there had been five recess appointments to the Supreme Court. During this period, when those who wrote the Constitution were alive and active, not one dissenting voice was raised against the practice." Note, Recess Appointments to the Supreme Court--Constitutional But Unwise?, 10 Stan.L.Rev. 124, 132 (1957).

The actions of the three branches of our government have consistently confirmed the President's power to make recess appointments. The Executive Branch has made extensive use of the recess power. Approximately 300 judicial recess appointments have been made in our nation's history. ⁶ Presidents Eisenhower and Kennedy alone made fifty-three such appointments during their Administrations. See H. Chase, Federal Judges The Appointing Process 86-88, 114-15 (1972).

The Legislative Branch has consistently confirmed judicial recess appointees without dissent. Moreover, Congress has passed legislation providing for the salaries of recess appointees, without excluding judges. 5 U.S.C. Sec. 5503; see also S.Res. 334, 86th Cong., 2d Sess., 106 Cong.Rec. 18,130-45 (1960) (statement of Senator Hart) (confirming President's power to make judicial recess appointments).

Finally, we turn to the Judicial Branch. The only direct challenge, prior to the present action, to the President's power to make judicial recess appointments was rejected by the Second Circuit in United States v. Allocco, 305 F.2d 704 (2d Cir.1962), cert. denied, 371 U.S. 964, 83 S.Ct. 545, 9 L.Ed.2d 511 (1963). Although the United States Supreme Court has never passed on the issue, numerous Justices have been recess appointees. Chief Justice Rutledge sat as a recess appointee for six months and participated in two decisions. He delivered the opinion of the Court in United States v. Peters, 3 U.S. (3 Dall.) 96, 1 L.Ed. 535 (1795) and wrote with the majority in Talbot v. Jansen, 3 U.S. (3 Dall.) 105, 1 L.Ed. 540 (1795). Justice Curtis, who received a recess appointment in 1851, sat as a judge of the Circuit Court of the United States for the First Circuit and the Rhode Island District Court, while he was a recess appointee. See Note, supra, at 131 n. 24. Altogether, fifteen recess appointments have been made to the Supreme Court. Staff of House Comm. on the Judiciary, 86th Cong., 1st Sess., Recess Appointments of Federal Judges 40 (Comm.Print 1959). Of these, at least four appointees sat on the Court prior to their confirmation. Note, supra, at 125. There is no evidence that any member of the Supreme Court ever objected to this practice on constitutional grounds.

IV

Our historical review demonstrates that there is an unbroken acceptance of the President's use of the recess power to appoint federal...