What Is a Recess Appointment?

Earlier this month, on the final day of a congressional recess, President Clinton appointed James Hormel ambassador to Luxembourg without Senate confirmation. The move prompted Sen. James Inhofe, R-Okla., to remark, “[Clinton] has shown contempt for Congress and the Constitution.” Is Inhofe right?

Clinton’s act was certainly constitutional. A recess appointment is one of the executive powers enumerated in the Constitution: “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” (II, 2, 3). The provision was originally created to fill vacancies that actually occurred during a recess, but it has since morphed into an all-purpose executive tool to counter Senate intransigence. President Kennedy, for instance, appointed Thurgood Marshall to the bench during a recess because he feared opposition from Southern senators. By the time Marshall’s nomination came before the Senate, that resistance had been beaten back.

Presidents also use recess appointments to delay a confirmation vote until after an election, when the nominee possesses the advantage of incumbency and, ideally, faces a friendlier Congress. President Eisenhower appointed three justices during recesses: Earl Warren, William Brennan, and Potter Stewart. All three occurred immediately before an election, and all were confirmed the following spring by a new Congress.

Hormel, an heir to the meat-packing family and a San Francisco-area philanthropist, is openly homosexual and a large contributor to the Democratic party (over $200,000 in the ‘95-’96 election cycle). Conservative religious groups have complained that he has refused to condemn the Catholic-spoofing performance group Sisters of Perpetual Indulgence. (Luxembourg is 99 percent Catholic.) His 1997 nomination passed the Judiciary Committee, but Senate Majority Leader Trent Lott deferred to the objections of several conservative senators, including Inhofe, by refusing to bring the nomination to a vote on the floor. Hormel’s appointment will last until December 2000, several weeks before Clinton steps down.

Clinton has used the recess appointment relatively sparingly; his average of nine per year is far lower than Reagan’s 30 and Bush’s 20. And the GOP Congress has consented to at least one unconfirmed Clinton appointment: When Drew Days stepped down as solicitor general in July 1996, the Senate let Clinton appoint Walter Dellinger–already confirmed as an asssistant attorney general–as “acting” solicitor general after Dellinger promised to serve only one year.

But the Senate hasn’t looked kindly on most unconfirmed appointments. When Congress took a recess in 1997 and warned Clinton not to appoint controversial NAACP lawyer Bill Lann Lee to the Justice Department while it was gone, the president appointed Lee as an acting official instead of making a recess appointment. And since acting officials must be employed by the DOJ at the time of appointment,  Lee was first hired as deputy assistant attorney general, which requires no confirmation, and later that day promoted to the position for which he had been nominated – assistant attorney general for civil rights – in an acting capacity. Congress closed this loophole as part of last year’s budget deal. Meanwhile, Lee has been “acting” in that position for more than 500 days.

Explainer thanks Professor Brannon Denning of the Southern Illinois University College of Law, Samuel Bagenstos of Harvard Law School, and Lin Larson of the University of Iowa.