Free The Odd Clauses by Jay Wexler Page A

during a weeklong intrasession break? What if the president wants to wait until the very last day of such a break to make the appointment? The idea that the president has to act immediately because the Senate isn’t in session is a complete fiction; the senators will be back tomorrow, or at least by the next week. Moreover, if the president
is
allowed to make a recess appointment at the end of a weeklong intrasession break, why wouldn’t it be possible to make a recess appointment after the Senate goes home for the evening, or when it steps out for a coffee break? Can the president really use the recess appointment power in this way? These are some tricky questions, and they bring us back to the case of William H. Pryor.
    If there is any office for which the recess-appointment power never needs to be used, it’s the office of federal judge. The country is not going to fall apart if some court happens to have a vacancy or two for a month while our senators get some rest and relaxation in the Bahamas. And indeed, although early presidents did use the recess-appointment power to appoint judges, such recess appointments have been rare in modern times. Between 1980 and 2000, for example, not a single federal judge was put on the bench during a Senate recess or break. In recent years, though, as the country has become more bitterly divided politically, fights over federal judicial nominations have become ferocious, with Democrats refusing to confirm Republican nominees and vice versa. So perhaps it is no surprise that presidents, facing a series ofSenate stonewalls, have begun using the recess-appointment power to appoint judges. Clinton put a judge on the federal court of appeals during the Christmas break right before his term ended, and George W. Bush made two such recess appointments—Pryor and the cross-burner-helper guy.
    It is also not surprising that these controversial moves have been met with aggressive countertactics, including lawsuits challenging various recess appointments. In the suits challenging Judge Pryor’s appointment, challengers made two main arguments. First, they argued that because the position for which Pryor was appointed did not
become vacant
while the Senate was in recess, that vacancy did not
happen
during a recess, and therefore the recess-appointment clause did not give the president the power to appoint someone to fill it. Second, they contended that when the Constitution says “recess,” it means only the recess
between
sessions of Congress, and not any little break that happens
during
one of those sessions.
    So, what about these arguments? Does the position have to become vacant during the recess for it to have “happened” during the recess? What does the word “happen” mean, anyway? On the one hand, the word does usually mean something like “occur.” When we ask when an accident “happened,” for instance, we want to know when it occurred. On the other hand, it is plausible to read “happen” as meaning something like “exist,” or “be going on,” at least some of the time. One commentator points to things like “a vacation, an illness, a sabbatical, a leave of absence, a war,” which he says “are generally understood to ‘happen’ over an extended period of time.” “You went to North Dakota for vacation?” we might ask, shocked, upon learning that a colleague had recently spent a week in Bismarck: “When did that happen, and did you at least bring me back a lousy T-shirt?” Okay, fair enough. Still, though, I think the most natural reading of “happen” is more like “occur” then like “exist.”
    The problem with this reading of “happen” in the context of the recess-appointments clause, however, is that it leads to results that are inconsistent with the purpose of the clause. If we read “happen” in the clause to mean