[Update: Additional information added.]
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.
-- Art. II, sec. 2
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. 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.
-- Article III, sec. 1
President Bush's decision appoint two federal appellate judges during a short intra-term recess of the Senate was problematic on policy grounds. The Senate Judiciary Committee already rejected one of them (Judge Pickering, who was later re-nominated; the other appellate judicial nominee so rejected is being held up by filibuster) and the other (Judge Pryor) was one of the most controversial of his nominations. And, obviously, neither vacancy occurred during the actual "recess."
[It also was a heavyhanded way to show his power and satisfy a base, but my concerns are not purely political -- if a Democrat did something similar, constitutional problems would arise as well. Such matters often have political ramifications and are fought out in the political arena, but something more is at stake here as well.]
Finally, given the judges still need to be confirmed after the end of the next session of the Senate, there is some serious question just how independent they truly are. Thus, using a means to appoint judges that has rarely been used since the 1960s was dubious.* The opening to skirt the "advise and consent" power of the Senate is clear: there are quite a few mini-breaks during a session in which a President can fill a controversial nominee that is being held up. Such a big loophole is especially damaging when we are talking about appointments to the judicial branch.
A defendant challenged Judge Pryor's appointment, after his panel upheld a conviction, and Sen. Kennedy also joined the appeal to defend the turf of the Senate. An en banc ruling of the court (Judge Pryor recusing himself) upheld the practice, though it involved the legitimacy of one of their own. As one of the two dissenters noted, this was surely one those special cases where the court should have "certified" the case to the Supreme Court (which could decide the matter or ask another circuit to rule on the issue).
I agree with the majority that cries of partiality are a bit slim, but it's a reasonable concern. Ditto the fact that the judges could be in the situation of ruling against one of their own. Two other cases involving this issue concerned federal district judges, so did not raise similar problems. The Supreme Court still might accept the case for review (if the parties appeal; and I think there is a good argument to be made that they should take it), but surely would have dealt with the matter in a speedy matter if it had to do so. As noted, it is a rare enough procedure as applied to federal judges that this is one of those unique cases where special concern of the Supremes is warranted.
On the merits, the best case for the president's actions is that the practice of intra-session recess appointments have had a long history. Though federal judges (especially "Article III" judges with life time terms) raise special concerns, the Constitution arguably appears to set the same rules for all executive appointments that require Senate approval. Thus, the hundreds of intra-session (here a few days) recess appointments since the 1790s seems damning. I'd note though that there was a lot fewer judicial appointments of this nature, even without raising the whole issue of when the vacancy occurred.
The one dissent that did discuss the merits does have a point though that the practice is dubious on constitutional grounds as well. The recess appointment procedure speaks of "the recess" for vacancies that "happen" during that time. Basically arguing that history was determinative, the majority stretched the English language to argue that "the" and "happen" can mean many recesses and vacancies that "happen to exist" at the time. This recalls something I read recently by Justice William Johnson stating that reading the text without a proper concern for the spirit behind it is foolhardy.
And, the dissent pointed out that said spirit suggests the executive was not to have a continual power to trump the Senate's appointment power by the means used here. The recess power, for instance, was in place to fill vacancies that arose when the Senate was not in session. It was not supposed to supersede the Senate's decision not to confirm nominees by waiting for a short recess and putting the person into office that way. Furthermore, the word "the" suggests "one" recess, which originally was a quite long one at that. Early analysis of the Constitution seems to back up the point. Separation of power concerns would also counsel such a result.
[The "happen" issue might seem a bit trivial, though it actually is an important matter, as discussed here by one friendly to Judge Pryor. As noted there, the historical precedent suddenly becomes less weighty when one looks at the fact that the recess appointments tended to be made quickly and applied to actual vacancies arising at the time. Compare this to the complaints by his co-blogger concerning the criticisms of the appointment and the failure to respond to constitutional concerns. Selective concern for the Constitution works both ways, but this is a tad bit glaring.]
The majority also stated the concern that judges cannot delegate their power, so long vacancies open up a concern that might not be the case when we are talking about executive officials (e.g., we don't have assistant judgeships like we have assistant attorney generals). This suggests judges set up a special situation, though the opinion isn't consistent on this point. Furthermore, the concern only really is in place for Supreme Court justices, though even here the recent lack of recess appointments suggest ways around the potential problems.
And, though the recess appointments of Justices Warren and Brennan are cited, it is to be noted that various top legal professionals were quite dubious of such appointments at the time. The fact that such appointments are not made these days, especially given the temper of the times, is to be applauded. At any rate, there are many appellate judges in a court and sometimes they are appointed by special designation for certain cases. Finally, clearly, the selective use of the power here counsels us not to accept an argument for necessity.
The "Good Behaviour Clause" as well as the pay provision (not being confirmed seems to violate this, and there is even a law on the books that might require such recess appointments not even to be paid at all -- see footnote citations) seems to suggests Art. III judges are different, and history alone might not save the day here. The majority suggests the wording is not absolute, even though it surely sounds absolute, thus the fact Judge Pryor might actually have a limited term is not a constitutional problem. I am not really so easily convinced.
One more thing. The recent case of Nguyen v. United States is but one of several cases by the Supreme Court that rejected the legitimacy of participation of judges on Art. III courts (those with the guidelines set by the opening quote) that are are not given the full protections of said courts. Nguyen (5-4, though all nine felt the judge was on the panel illegitimately) in fact found a ruling made with such an unqualified judge was void. The judge was a territorial judge appointed to a panel by special assignment, a judge that only had a ten year term. If this is bad, how about a judge that might have a less than a two year term? See also, the footnote articles.
Interesting reading. Two basic conclusions. (1) It was a bad idea for the 11th Circuit to basically try their own case. (2) It was a bad idea for the President to make these two recess appointments. History might suggest it is constitutional, but constitutional principles suggest that just because a court should not strike down an act, said act is not loyal to the document. At the very least, this rule applies here. [I'll add a third. President Bush, in response to pressure, promised not to do this sort of this again. All the same, the precedent was set and its legality upheld. So, the dance continues.]
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* How rarely? I double-checked, see here and here, and only twice since 1964 were recess appointments used to fill the federal judiciary. One, which resulted in a lawsuit like this that went the other way at first, was not confirmed. Another was an end of the term affair by President Clinton, re-nominated by President Bush, and confirmed 93-1. The extraordinary action was made after about ten years of repeated blockages of attempts (primarily by Senator Helms) to fill a vacancy in the Fourth Circuit. As noted, the two appointed by President Bush are quite controversial, and were blocked by almost every Democrat in the Senate.