Has a President Ever Made a Recess Appointment to the Supreme Court?

A recess appointment expires at the end of the following session of Congress unless confirmed by the Senate in the interval - in late 2005 for any appointments made in the remaining weeks of 2004, or at the end of the second session of the new Congress, in late 2006, for appointments made after Jan. 1.

While there have been 12 recess appointments to the Supreme Court, 9 of them occurred in the early years of the country. The only 3 recess appointments in modern times, those of Chief Justice Earl Warren and Justices William J. Brennan Jr. and Potter Stewart, were all made by President Eisenhower in the 1950's.

Although the Senate subsequently confirmed those three justices, the experience left many senators uneasy. While some simply resented the exercise of presidential power, others argued also that judicial independence was compromised by the recess-appointed justices' knowledge that they would be confirmed to lifetime appointments only if the Senate was satisfied with their performance.

In 1960, the Senate passed a resolution opposing the practice on a largely party-line vote, with most Democrats voting for the resolution and all the Republicans opposed.