During my rant on the Pickering recess appointment yesterday, I mentioned Northern Pipeline as a potential barrier to the validity of anything Pickering hears on the Fifth Circuit. Northern Pipeline is a bankruptcy case from the 1980s. It overturned the power of bankruptcy judges—who are appointed for fixed terms under Article I, not as life-tenured judges under Article III—to hear everything and anything related to a debtor. Current doctrine allows bankruptcy judges to hear only "core matters"—that is, matters directly related to the validity of a particular assertion of debt in the matter.
Last spring, the Supreme Court decided in Nguyen v. US that a Ninth Circuit panel consisting of two confirmed Ninth Circuit judges plus a District Court judge from the Northern Marianas Islands, a US Pacific territory, could not hear an appeal. Territorial judges, although given the general status of federal District Court judges (who are appointed under Article III), are Article IV judges—they are appointed without confirmation for ten-year terms. Interestingly, all nine justices agreed that the panel was improper; the split was over the remedy available because Nguyen had not objected to the panel at the time it heard the case.
Northern Pipeline is actually a much clearer opinion than is Nguyen (and thus why I thought of it first!). Nguyen is primarily a case about remedies—that is, whether the defendant was entitled to have his appeal reheard by a proper panel or not. Those same remedies will be available should the Pickering recess appointment be improper—and you can bet that attorneys will raise the matter this time to avoid a split!
The ultimate question, though, is why a recess appointment is not proper. Logically, it cannot be distinguished from the limited-term appointments of bankruptcy judges under Article I and territorial judges under Article IV. It is a limited-term appointment (a maximum of about two years, at the changing of a Congress after federal elections in even-numbered years) that does not require—and, in fact, specifically evades—confirmation by the Senate. Although the term of a recess appointment is not explicitly limited, one thing that one definitely can say is that it is not the life tenure explicitly given Article III judges. Congress cannot, using its undoubted Article I power over bankruptcies, give bankruptcy judges full Article III powers without subjecting them to the confirmation process (Northern Pipeline), and Article IV judges cannot sit on Article III appeals court panels even at the specific invitation of the appeals court (Nguyen). That more than one characteristic is in common between those two cases and Pickering's appointment—the limited tenure and the absence of confirmation—and that Nguyen expressed disapproval of improper panel composition by all nine justices should give one pause. And more than pause. Now, consider that it was the Fifth Circuit… but that's for another time.