Unsuccessful recess appointments to United States federal courts


In the history of the United States, there have been approximately thirty-two unsuccessful recess appointments to United States federal courts. Twenty two persons have been appointed to a United States federal court through a recess appointment, who were thereafter rejected by the United States Senate when their name was formally submitted in nomination, either by a vote rejecting the nominee, or by the failure of the Senate to act on the nomination. These individuals served as federal judges, having full authority to hold office and issue rulings, until their rejection by the Senate. Five individuals were appointed, but resigned the office either before the Senate voted on their nomination, or before a formal nomination was even submitted. Another five individuals were appointed, but were found to be unavailable to assume the office.

Constitutional background

, Section 2, Clause 3 of the United States Constitution states:
This language permits the President to make appointments that would normally require the advice and consent of the Senate without such approval. Even if the Senate votes to reject the nominee, that person may remain in the office to which they were appointed until the Senate adjourns its session.

History of use

, appointed by George Washington was the first recess appointment to be rejected by the Senate, and the only recess appointee to the Supreme Court of the United States to be rejected. Washington appointed Rutledge on July 1, 1795, but because of Rutledge's political views and occasional mental illness, the Senate rejected his nomination December 15, 1795. Rutledge subsequently attempted suicide, and then resigned on December 28, 1795. The 4th United States Congress remained in session until June 1, 1796, so Rutledge could have remained on the Court until then, but chose not to.
Wallace McCamant, appointed by Calvin Coolidge on May 25, 1925, to the United States Court of Appeals for the Ninth Circuit, was the lone recess appointment to a United States Court of Appeals to be rejected by the Senate. The Senate rejected his nomination on March 17, 1926, and he resigned on May 2, 1926.
In total, fourteen presidents have had recess appointments rejected. William Howard Taft - who only made six recess appointments to the federal bench - experienced the largest number of rejected recess appointments, with three. Harry S. Truman - who made a record 38 such appointments - also had three recess appointments rejected, but one of those was later reappointed and confirmed. Taft had also used recess appointments to reappoint two judges whose recess appointments by Theodore Roosevelt had been rejected; both appointees resigned from their positions before their names were formally submitted into nomination.

Unsuccessful recess appointments by type

Rejected recess appointments

Rejected recess appointees to the United States district courts are as follows:
JudgeCourtAppointing
President		Began active
service		Ended active
service		Notes
S.D. Fla.Taft19120826August 26, 191219130303March 3, 1913Congress adjourned without acting on the nomination.
D. OhioJ.Q. Adams18281101November 1, 182818290216February 16, 1829Congress adjourned without acting on the nomination.
W.D.N.C.McKinley18980716July 16, 1898
April 14, 1899		19000607March 4, 1899
June 7, 1900		Received consecutive recess appointments to the same court; on both occasions, Congress adjourned without acting on the nomination.
E.D. Mich.Eisenhower19601013October 13, 196019610927September 27, 1961Congress adjourned without acting on the nomination. Renominated to the same court by John F. Kennedy, but the nomination was withdrawn; again renominated by Richard Nixon, on October 7, 1970, to a different seat on the same court, and confirmed by the United States Senate on November 25, 1970, receiving his commission on December 1, 1970; took senior status on March 1, 1986.
N.D. Cal.Truman19530717July 17, 195219530724July 24, 1953Nomination withdrawn prior to Senate action.
W.D. Mo.Truman19470807August 7, 1947
December 20, 1947		19480622December 19, 1947
June 22, 1948		Received three consecutive recess appointments to the same court; on the first two occasions, Congress adjourned without acting on the nomination, but confirmed the third recess appointment; thereafter served as an active judge until January 5, 1971, and in senior status until his death on February 13, 1994.
D. Haw.Carter19810101January 1, 198119811216December 16, 1981Nomination withdrawn prior to Senate action.
E.D. Ark.Eisenhower19581025October 25, 195819590911September 11, 1959On August 18, 1959, before the recess appointment expired, Eisenhower re-nominated Henley to a different seat on the Eastern and Western District of Arkansas; confirmed by the Senate on September 2, 1959, and received his commission on September 8, 1959 - three days before the expiration of his recess appointment; thereafter served on the District Court until March 24, 1975, and was then elevated to the Eighth Circuit.
W.D. Wash.Taft19120826August 26, 191219130303March 3, 1913Congress adjourned without acting on the nomination.
D. Ala.T. Roosevelt19070409April 9, 1907
May 30, 1908		19090303May 30, 1908
March 3, 1909		Received three consecutive recess appointments to the same court, two from Roosevelt and the third from William Howard Taft; on the first two occasions, Congress adjourned without acting on the nomination; resigned after the third recess appointment, with his name not having formally been put into nomination.
N.D. Ill.Hoover19320803August 3, 193219330303March 3, 1933Formally rejected by the Senate.
D. Neb.Cleveland18961120November 20, 189618970201February 1, 1897Nomination withdrawn prior to Senate action.
D. Minn.T. Roosevelt19080706July 6, 190819090303March 3, 1909Congress adjourned without acting on the nomination; received a second recess appointment to the same seat from President William Howard Taft on March 6, 1909, but resigned on May 1, 1909, with his name not having formally been put into nomination.
W.D. Wis.L.B. Johnson19640107January 7, 196419641003October 3, 1964Congress adjourned without acting on the nomination.
W.D. Va.F. Roosevelt19380706July 6, 193819390206February 6, 1939Formally rejected by the Senate.
D. Ariz.Taft19121203December 3, 191219130303March 3, 1913Congress adjourned without acting on the nomination.
S.D. IowaTruman19491021October 21, 194919500809August 9, 1950Formally rejected by the Senate.
D. OhioJackson18331012October 12, 183318340529May 29, 1834Formally rejected by the Senate.
M.D. Ga.Coolidge19260606June 6, 192619270304March 4, 1927Received a second recess appointment to a different seat on the same court on March 5, 1927, but resigned on March 19, 1928, with his name not having formally been put into nomination.
E.D. Tex.Grant18701011October 11, 187018710303March 3, 1871Congress adjourned without acting on the nomination.

Recess appointments who resigned

JudgeCourtAppointing
President		Began active
service		Ended active
service		Notes
W.D. Va.J.Q. Adams18250506May 6, 182518250729July 29, 1825Resigned before he was formally nominated to the office, and was therefore never considered by the United States Senate.
Fifth CircuitG.W. Bush20040116January 16, 200420041208December 8, 2004Formally nominated on January 7, 2003, but resigned prior to action by Congress on the nomination.