The Second and Ninth Circuits, in reasoned opinions, have also decided that the Recess Appointments Clause reaches appointments to Article III courts. United States v. Woodley, 751 F.2d 1008 (9th Cir. 1985) (en banc); United States v. Allocco, 305 F.2d 704 (2d Cir. 1962).
Evans v. Stephens, No. 02-16424 (Oct. 14, 2004) (slip order; typography corrected) at 78 (PDF, 200kb). Oops. As I mentioned when I last discussed this issue, the Supreme Court has ruled upon a rather similar issue much more recently. Unfortunately, the majority opinion cites Nguyen only for the proposition that there is no overwhelming jurisdictional issue in this matter; and, more disturbingly, never cites Northern Pipeline at all, even though it is directly on point. See, e.g., 458 U.S. 50, 5760 (plurality op.). The problem is not with distinguishing the issue, which the Eleventh Circuit majority did in three sentences; it is that it did not acknowledge the existence of prior authority on the issue.
The second problem, as I alluded to yesterday, is the source of definitions for "recess." Relying upon dictionaries is all well and good when trying to define terms. However, choosing the appropriate dictionary is not a task that can be ignored. The Federal Circuit is struggling with this issue now when trying to understand terms in patent applications. I find it curious, and disturbing, that the Eleventh Circuit does not even cite to any "non-generalist" dictionary to see if there is any conflict between the kinds of definitions one would find in a general dictionary and those one would find in a source devoted to this specific subject matter. There may very well be compelling reasons, in a particular circumstance, to prefer the general to the specific definition; my concern is that the question appears not to have been asked. In fact, there is tension between general definitions and those used by parliamentarians, both of the eighteenth century and today; pretending that there is no conflict is no way to resolve an issue of this import.
On the other hand, I think the majority did an acceptable job in rejecting the "vacancies must arise during the recess, not just exist during the recess" argument. Although demonstrating it is far beyond the scope of a blawg, this interpretive theory would require, for internal consistency, interpretation of other clauses in the Constitutioneven in Article IIIin rather nonsensical ways.
The real problem with the Eleventh Circuit's approach is not that it is completely unreasonable; a reasonable person could agree that the values of expediency expressed in the Recess Appointments Clause justify temporary Article III appointments. I disagree with this conclusion; but then, I'm not an Article III judge myself! The problem is that the majority opinion sweeps so much critical material under the carpet that the lacunae in its reasoning imply that its decision was partisan. I don't believe it so; but, given the political context of both Judge Pryor's appointment and this election year, I think it was unwise to leave that impression. As Judge Barkett and Judge Wilson pointed out in their separate dissents, this matter would better have been left to the Supreme Court… if only because that would avoid the appearance and potential conflicts of colleagues deciding upon each others' ability to hold office.