The Law: Recess Appointments to Article III Courts

Under the Constitution, the president and the Senate share the power to appoint officers of the United States, including federal judges. The Constitution also empowers the president to make temporary appointments without the Senate's approval during Senate recesses. Presidents have made over 300 recess appointments to Article III courts, but the practice has become rare in the last 40 years. Although courts have found tension between Article II and Article III inherent in judicial recess appointments, the practice has been held to be constitutional. Intrasession recess appointments, particularly during recesses of less than 30 days, have sometimes proven controversial.