Full opinion text
BEEZER, Circuit Judge: We take this case en banc to address the constitutionality of a practice followed by the Executive for nearly 200 years. The question before us is whether the President, of the United States may constitutionally confer temporary federal judicial commissions during a recess of the Senate pursuant to article II, section 2 of the Constitution. I On February 28, 1980, Walter Heen was nominated to fill a judicial vacancy in the United States District Court for Hawaii. The Senate Judiciary Committee began confirmation hearings on his nomination on September 25, 1980. When the Senate recessed on December 16, 1980, testimony and hearings on the nomination were complete, but the nomination did not come before the full Senate for its advice and consent. During the Senate’s recess, on December 31, 1980, President Carter conferred a commission on Judge Heen pursuant to the recess appointment clause of article II of the United States Constitution. Heen then took his oath and assumed his duties as district court judge. On January 21, 1981, Heen’s nomination was withdrawn by President Reagan. Heen continued sitting as a district judge pursuant to his recess commission until December 16, 1981, when the 97th Congress ended its First Session. On September 18, 1981, while Heen was sitting out his commission, appellant Janet Woodley was indicted on three counts of narcotics violations. Woodley filed a motion to suppress evidence, which was denied by Heen. Judge Heen then presided over a bench trial on stipulated facts and found Woodley guilty as charged in the indictment. Woodley appealed the denial of her motion to suppress. A panel of this court raised the issue sua sponte whether Judge Heen could constitutionally preside over Woodley’s trial. The panel held that he could not and it vacated Woodley’s conviction. United States v. Woodley, 726 F.2d 1328, 1339 (9th Cir.1983). The court having convened en banc, United States v. Woodley, 732 F.2d 111 (9th Cir.1984) (order granting rehearing en banc), we hold that the recess appointment clause extends to judicial officers and that a recess appointee to the federal bench can exercise the judicial power of the United States. II The recess appointment clause provides that: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” U.S. Const, art. II, § 2, cl. 3. Article III, in turn, provides in relevant part that: “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.” U.S. Const, art. Ill, § 1. Woodley contends that under generally accepted principles of statutory construction, the more specific language of article III governs over the general language of the recess appointment clause. She concludes therefore that article III forbids interim judicial recess appointments. We reject this argument. The United States Supreme Court has unequivocally stated that “[t]he Constitution ... must be regarded as one instrument, all of whose provisions are to be deemed of equal validity.” Prout v. Starr, 188 U.S. 537, 543, 23 S.Ct. 398, 400, 47 L.Ed. 584 (1903). Moreover, while article III speaks specifically about the tenure of federal judges, article II is equally specific in addressing the manner of their appointment. There is therefore no reason to favor one Article over the other. The language of the recess appointment clause explicitly provides that the President has the power to fill all vacancies during the recess of the Senate. The Federalist papers clarify the meaning of the recess clause, stating that it “is to be considered as supplementary to the [clause] which precedes” and that the vacancies referred to “must be construed to relate to the ‘officers’ described in the preceding [clause].” The Federalist No. 67, at 455 (A. Hamilton) (J. Cooke ed. 1961). The preceding clause in question provides in relevant part that the President “shall nominate, and by and with the Advice and Consent of the Senate shall appoint ... Judges of the supreme Court, and all other Officers of the United States____” U.S. Const, art. II, § 2, cl. 2 (emphasis added). This language further underscores that there is no basis upon which to carve out an exception from the recess power for federal judges. Particularly relevant in this context is Alexander Hamilton’s statement that “[a]s to the mode of appointing the judges: This is the same with that of appointing the officers of the union in general____” The Federalist No. 78, supra, at 522. Ill Woodley also argues that there is no historical evidence that the Framers intended the recess provision to apply to the judiciary. This argument is not only refuted by the express language of the recess clause, which, as previously noted, refers to all vacancies, but it is also refuted by legislative' history, as well as historical practice, consensus, and acquiescence. Although the recess appointment clause was adopted without debate, 2 Farrand, Records of the Federal Convention 533, 540 (1911), there is evidence that it was not entirely uncontroversial. Edmund Randolph, the governor of Virginia, initially declined to sign the Constitution, in part because the recess provision gave the Executive the power to confer judicial commissions during the recess of the Senate. 3 Farrand, supra, at 123, 127. In 1789, shortly after ratification of the Constitution, George Washington, who had served as President of the Constitutional Convention, exercised his power under the recess provision. During the recess between the sessions of the First Congress, he conferred three recess district judge commissions. 30 The Writings of George Washington, 457-58, 473, 485 n. 75 (J. Fitzpatrick ed. 1939). At the time of these appointments, Edmund Randolph and two contributors to The Federalist, Alexander Hamilton and John Jay, served as members of President Washington’s Cabinet. There is no evidence that they doubted the constitutionality of the recess appointments. Moreover, the district court judges were confirmed upon the return of the Senate without objection to their recess appointments. 1 Executive Journal of the Senate 38, 40 (1790). It is further noteworthy that President Washington’s recess appointments of Justice Johnson in 1791 and of Chief Justice Rutledge in 1795 went unchallenged. One commentator has aptly noted that “the most significant historical fact is that by the end of 1823, there had been five recess appointments to the Supreme Court. During this period, when those who wrote the Constitution were alive and active, not one dissenting voice was raised against the practice.” Note, Recess Appointments to the Supreme Court — Constitutional But Unwise?, 10 Stan.L.Rev. 124, 132 (1957). The actions of the three branches of our government have consistently confirmed the President’s power to make recess appointments. The Executive Branch has made extensive use of the recess power. Approximately 300 judicial recess appointments have been made in our nation’s history. Presidents Eisenhower and Kennedy alone made fifty-three such appointments during their Administrations. See H. Chase, Federal Judges The Appointing Process 86-88, 114-15 (1972). The Legislative Branch has consistently confirmed judicial recess appointees without dissent. Moreover, Congress has passed legislation providing for the salaries of recess appointees, without excluding judges. 5 U.S.C. § 5503; see also S.Res. 334, 86th Cong., 2d Sess., 106 Cong.Rec. 18,130-45 (1960) (statement of Senator Hart) (confirming President’s power to make judicial recess appointments). Finally, we turn to the Judicial Branch. The only direct challenge, prior to the present action, to the President’s power to make judicial recess appointments was rejected by the Second Circuit in United States v. Allocco, 305 F.2d 704 (2d Cir. 1962), cert. denied, 371 U.S. 964, 83 S.Ct. 545, 9 L.Ed.2d 511 (1963). Although the United States Supreme Court has never passed on the issue, numerous Justices have been recess appointees. Chief Justice Rutledge sat as a recess appointee for six months and participated in two decisions. He delivered the opinion of the Court in United States v. Peters, 3 U.S. (3 Dall.) 96, 1 L.Ed. 535 (1795) and wrote with the majority in Talbot v. Jansen, 3 U.S. (3 Dall.) 105, 1 L.Ed. 540 (1795). Justice Curtis, who received a recess appointment in 1851, sat as a judge of the Circuit Court of the United States for the First Circuit and the Rhode Island District Court, while he was a recess appointee. See Note, supra, at 131 n. 24. Altogether, fifteen recess appointments have been made to the Supreme Court. Staff of House Comm, on the Judiciary, 86th Cong., 1st Sess., Recess Appointments of Federal Judges 40 (Comm. Print 1959). Of these, at least four appointees sat on the Court prior to their confirmation. Note, supra, at 125. There is no evidence that any member of the Supreme Court ever objected to this practice on constitutional grounds. IV Our historical review demonstrates that there is an unbroken acceptance of the President’s use of the recess power to appoint federal judges by the three branches of government. Woodley argues, however, that the Supreme Court’s recent decision in INS v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983), teaches that historical patterns cannot save an unconstitutional practice. We agree that historical acceptance alone cannot conclusively establish a practice’s constitutionality. Yet while we rely only in part on historical consensus in upholding the President’s authority to make judicial recess appointments, we cannot ignore historical observance. The teachings of Cha-dha are not to the contrary. That case held that historical acceptance of the legislative veto could not prevent it from running afoul of the Constitution. 103 S.Ct. at 2279 n. 13. The legislative veto is, however, a recent practice, barely 50 years old. Its use does not reach back to the days of the Framers, such as the practice at issue. Moreover, it is an impermissible statutory methodology, unsupported by an express constitutional grant of authority. While the use of the recess clause to make temporary judicial appointments has been accepted by all three branches of government for nearly 200 years, the relatively young legislative veto has been referred to by the United States Supreme Court as “the most recent episode in a long tug of war between the Executive and Legislative Branches....” Buckley v. Valeo, 424 U.S. 1, 140 n. 176, 96 S.Ct. 612, 692 n. 176, 46 L.Ed.2d 659 (1976) (per curiam). The United States Supreme Court has made clear that considerable weight is to be given to an unbroken practice, which has, prevailed since the inception of our nation and was acquiesced in by the Framers of the Constitution when they were participating in public affairs. See, e.g., , n, , „ ,. , ’ United States v. Curtiss-Wright Export Corp. 299 U.S. 304, 322, 57 S.Ct. 216, 221, 81 L.Ed. 255 (1936); J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 412, 48 S.Ct. 348, 353, 72 L.Ed. 624 (1928); Stuart v. Laird, 5 U.S. (1 Cranch) 185, 191, 2 L.Ed. 115 (1803). This principle was reaffirmed by the Court less than a month after Chadha. In Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), Chief Justice Burger, who also authored Chadha, noted that “[i]n light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society.” Marsh, 103 S.Ct. at 3336. Much in the same way, the use of the recess provision to appoint federal judges has been inextricably woven into the fabric of our nation, V Woodley says that a technical argument could be made that the language of the recess clause giving the President the power to fill all vacancies that “may hap-Pen during the Recess of the Senate,” means that only those vacancies that occur durin£ the recess itself can be filled bY Presidential appointment. She reasons therefore that Judge Heen’s appointment is invalid, because the vacancy which he filled did not occur during a recess of the Senate. Woodley’s interpretation conflicts with a common sense reading of the word kap-pen¡ as wej] as the. construction given to this word by the three branches of our government. T ,, ,,, ,, In a vacuum, the use of the word happen could be interpreted to refer to vacancies that eitber “haPPen to occur” or “happen to exist„ during a recess of the Senate. yet the former interpretation would lead to the absurd result that all offices vacant on the day the Senate recesses would have to remain vacant at least until the Senate reconvenes. Not only judicial positions, but all offices within the purview of article n, § 2, clause 2 would have to remain vacant. The positions of cabinet members and other high government officials would have to remain unfilled until the return of the Senate. If a vacancy occurred on the last day before the Senate’s recess, the President would be without power to fill that vacancy in the ensuing recess. Even assuming that the Senate was informed of the vacancy prior to its recess and the President submitted a timely nomination, the Senate would still be faced with the dilemma of either confirming a candidate of whose qualifications little is known or leaving that office vacant until the Senate reconvenes. We agree with the Second Circuit that this interpretation “would create Executive paralysis and do violence to the orderly functioning of our complex government.” Allocco, 305 F.2d at 712; see also Note, supra, at 126 (apparent purpose of recess clause “was to assure the President the capacity for filling vacancies at any time to keep the Government running smoothly”). We cannot attribute to the Framers an intent to create such a potentially dangerous situation. See South Carolina v. United States, 199 U.S. 437, 449, 26 S.Ct. 110, 111, 50 L.Ed. 261 (1905). We also emphasize that both the courts and the Executive Branch have consistently construed the recess clause as giving the President the authority to fill all vacancies that exist while the Senate is in recess. See, e.g., Allocco, 305 F.2d at 712-15 (President may make appointments to all vacancies that exist during a Senate recess); In re Farrow, 3 Fed. 112, 116 (N.D.Ga.1880) (President has power to make appointments “notwithstanding the fact that the vacancy filled by his appointment first happened when the senate was in session.”); 1 Op.Att’y Gen. 631, 633 (1823) (“[W]hether [a vacancy] arose during the session of the Senate, or during their recess, it equally requires to be filled.”); 2 Op.Att’y Gen. 525, 528 (1832) (President may make recess appointments “ ‘if there happen to be any vacancies during the recess.’ ”); 19 Op. Att’y Gen. 261, 263 (1889) {“\W\herever there is a vacancy there is a power to fill it.”) (emphasis in original). Both Houses of Congress have apparently recognized the soundness of this construction of the recess power. See Nomination of Charles Beecher Warren to be Attorney General, 67 Cong.Rec. 263-64 (1925) (recognizing President’s power to fill vacancies regardless of when they arose); 52 Cong.Rec. 1369-70 (1915) (statement of Congressman Borland) (recognizing power of president to fill vacancies that occurred during a previous session of the Senate). Moreover, Congress has provided for payment of recess appointees, such as Heen, whose nominations were pending at the time of the Senate’s recess. 5 U.S.C. § 5503(a)(2). We therefore decline to adopt Woodley’s “happen to occur” argument and recognize the President’s power to fill all vacancies that exist during a recess of the Senate. YI Finally, we address Woodley’s related arguments that the recess appointment clause is merely a “housekeeping measure” and that Judge Heen lacks the attributes of an article III judge contrary to the teachings of Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). In Marathon, Justice Brennan’s plurality opinion held that Congress may not, through a statute, constitutionally vest the non-article III adjunct bankruptcy judges with article III powers. Id. at 87, 102 S.Ct. at 2880. Yet the present case is not concerned with an attempt to circumvent article III by statute, but with the scope of an express constitutional provision. Moreover, the recess appointment clause is not simply a statutory solution to a judicial problem or a mere housekeeping measure. The clause prevents the Executive from being incapacitated during the recess of the Senate. This in turn prevents extended judicial vacancies, which can cause the denial of the important right of access to the courts. The Framers considered the recess appointment clause sufficiently important to include it in the Constitution. In the early days of the Republic, travel time was measured in days, not hours, and extended congressional recesses were expected. The advent of modern jet travel, instant communication, and present day prolonged sessions of Congress do not justify characterizing the recess appointment clause merely as a housekeeping measure. A recess appointee lacks life tenure and is not protected from salary diminution. As a result, such an appointee is in theory subject to greater political pressure than a judge whose nomination has been confirmed. Yet our Constitution has bestowed upon the Executive the power to make interim judicial appointments. This power is not unfettered, however, but is subject to its own limitations and safeguards. It may only be invoked when the Senate is in recess, and recess commissions expire at the end of the next congressional session. U.S. Const, art. II, § 2, cl. 3; see Staebler v. Carter, 464 F.Supp. 585, 597 (D.D.C.1979). We must therefore view the recess appointee not as a danger to the independence of the judiciary, but as the extraordinary exception to the prescriptions of article III. Cf. Marathon, 458 U.S. at 70, 102 S.Ct. at 2871 (certain exceptional powers bestowed upon Congress by Constitution not subject to prescriptions of article III). The judicial recess appointee, who has sworn to uphold the Constitution, fills a void left by those preceding in office, thereby permitting the unbroken orderly functioning of our judicial system. It should also be noted that as a practical matter, a recess appointee could not be a “lion under the throne,” subject to the whims of the President. 28 U.S.C. § 144 (bias or prejudice of a judge). “The evils of legislative and executive coercion ... have no support in our nation’s history.” Alloc-co, 305 F.2d at 709. VII Even viewing the recess clause as an unwise constitutional provision, it is not for this court to redraft the Constitution. Changes in that great document must come through constitutional amendment, not through judicial reform based on policy arguments. Accordingly, we hold that Judge Heen, as a recess appointee to the federal bench, could exercise the judicial power of the United States. The case is remanded to the panel for determination on the merits. BROWNING, Chief Judge, SNEED, SKOPIL, FARRIS, ALARCON and POOLE, Circuit Judges, concurring. NORRIS, Circuit Judge, with whom FLETCHER, FERGUSON and REINHARDT, Circuit Judges, join dissenting. Article III of the Constitution provides that “[t]he judicial Power of the United States” shall be exercised by judges whose independence from the political branches of government is assured by guarantees of life tenure and undiminished compensation. Today, our Court carves out an exception to this explicit and unqualified constitutional command by holding that the judicial power of the United States may be exercised by judges who serve at the pleasure of the President and the Senate. As Professor Freund aptly commented, every recess appointee sits with “one eye over his shoulder on Congress.” Harvard Law School Record, October 8, 1953, p. 1, col. 5. He has no assured tenure beyond the next session of the Senate. I agree with the majority that there is a direct conflict between the Recess Appointments Clause of Article II and the tenure and salary provisions of Article III of the Constitution. I also agree with the majority that in deciding which clause should prevail, we must look beyond the Constitution itself. As the majority observes, the text gives us “no reason to favor one article over the other.” Nor do the contemporaneous writings of the Framers of the Constitution shed much light on the issue. The Federalist and other sources overflow with references to the importance of an independent judiciary as a corollary of the very centerpiece of the constitutional plan — the separation of powers. But the records of the constitutional era tell us virtually nothing about the Recess Appointments Clause or how it was to interact with the tenure and salary provisions of Article III. My major point of disagreement with the majority is its reliance upon the executive’s practice of making recess judicial appointments as virtually the sole basis for its conclusion that the practice is constitutional. In my view, the majority skips what I believe should be a crucial step in the constitutional inquiry: evaluating and balancing the competing constitutional values at stake. Because of its uncritical acceptance of the historical practice as determinative of the constitutional issue, the majority fails to make any serious comparative analysis of the concerns for governmental efñ-ciency underlying the Recess Appointments J Clause and the principle of judicial mde-i . . pendence underlying the tenure and salary . . ttt provisions of Article III. We need only look to recent history to appreciate that there is genuine tension between the values underlying the two op- ... _ .. , posing constitutional provisions. President tl. , > . . , . ,. Eisenhower s recess appointments to the ci . . T ,. „ . ... Supreme Court of Chief Justice Earl War- • mro . . .* t> • mrc ren m 1953 and Justice Brennan m 1956 both created controversy about the legitimacy of recess appointments to that Court. Senator Joseph McCarthy’s public interrogation of Justice Brennan while the latter was a sitting Justice of the Court tells its own cautionary tale: Senator McCarthy. You, of course, I assume, will agree with me and a number of the members of the committee— that communism is not merely a political way of life, it is a conspiracy designed to overthrow the United States Government. Mr. Brennan. Will you forgive me an embarrassment, Senator. You appreciate that I am a sitting Justice of the Court. There are presently pending before the Court some cases in which I believe will have to be decided the question what is communism, at least in the frame of reference in which those particular cases have come before the Court. I know, too, that you appreciate that having taken an oath of office it is my obligation not to discuss any of those pending matters. With that qualification, whether the label communism or any other label, any conspiracy to overthrow the Government of the United States is a conspiracy that I not only WOuld do anything appropriate to aid suppressing, but a conspiracy which, of course, like every American, I abhor, Senator McCarthy. Mr. Brennan, I don>t want to press you uimecessarily, but the tion wag simple_ You haye nQt been confirmed t as a member of ^ s e Court There wffl come be. „ ,. tore that Court a number of questions , . ,, . , , . „ involving the all-important issue of ,,, , . . , whether or not communism is merely a . , ... political party or whether it represents a conspiracy to overthrow this Government. tut ,, , ,, 0 . .... , I believe that the Senators are entitled , , , . to know how you feel about that and you ,, , . won t be prejudicing then any cases by . U, f. J answering the question, ^ Hearings Before the Senate Committee on Judiciary on Nomination of William Joseph Brennan, Jr.: 85th Cong., 1st Sess., 17-18 (1957). Even before Justice Brennan’s ordeal, the recess appointment of Chief Justice Warren provoked what seems to have been the first scholarly comment concerning the constitutionality of such appointments. The Warren appointment occurred after Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), was originally argued to the Supreme Court but before reargument actually took place. In response to the Warren appointment, the eminent constitutional scholar Professor Henry M. Hart, Jr. warned that for Warren to take his seat and decide cases before his confirmation by the Senate would “violate the spirit of the Constitution, and possibly also its letter.” Harvard Law School Record, October 8, 1953, p. 2, col. 2. Professor Hart noted that Warren’s permanent appointment would be subject to three future contingencies: (1) the decision of the President to forward his nomination to the Senate; (2) the decision of the President not to withdraw the nomination before it has been acted upon; and (3) the decision of the Senate to confirm the nomination. The Senate will be entirely free ... to postpone its action until near the close of the session in order to see how the new nominee is going to vote. Id. Hart then stated, “I cannot believe that the Constitution contemplates that any Federal judge ... should hold office, and decide cases, with all these strings tied to him.” Id. Recognizing that, as the majority here stresses, recess appointments had been made in the past and that Attorneys General had assumed such appointments to be valid, Hart stressed that “occasional practice backed by mere assumption cannot settle a basic question of constitutional principle.” Id. Looking to “the spirit and purpose of the Constitution,” Hart observed, the impropriety [of recess appointments to the federal judiciary] becomes unmistakable. On few other points in the Constitutional Convention were the framers in such complete accord as on the necessity of protecting judges from every kind of extraneous influence upon their decisions. Id. Hart concluded, a judge cannot possibly have this independence if his every vote, indeed his every question from the bench, is subject to the possibility of inquiry in later committee hearings and floor debates to determine his fitness to continue in judicial office. Id. The majority today all but ignores the careful analysis of constitutional purposes and values that Professor Hart obviously believed was critical to resolution of the tension between Article III and the Recess Appointments Clause. To be sure, the executive’s practice of vesting recess appointees with Article III power has a long and impressive historical pedigree, but the majority indiscriminately defers to this practice as dispositive of its constitutionality. In my view, such uncritical acceptance of a practice as a basis for judging its constitutionality is inconsistent with the judiciary’s historic role as the final arbiter of the constitutionality of the actions of the political branches of government. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803). To make my point that the majority allows practice to play an exaggerated role in its constitutional analysis, I will employ a four-step inquiry. First, I will review the text of the Constitution. Second, I will examine the contemporaneous writings of the Framers as they pertain to the two clauses , in question. Third, I will weigh the competing values that animate the two clauses. Finally, after discussing the role of historical practice as a factor in constitutional analysis generally, I will consider the specific practice of making recess judicial appointments as a factor in deciding the constitutionality of that practice. I. THE CONSTITUTIONAL TEXT The Constitution presents us with two separate and contradictory clauses, one in Article II and one in Article III, each clear and unambiguous on its face. The Recess Appointments Clause, Article II, section 2, provides: The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. U.S. Const., art. II, § 2, cl. 3. When read in light of a preceding clause, U.S. Const, art. II, § 2, cl. 2, which gives the President the general power to “appoint Ambassadors ..., Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for ...,” the language of Article II seems to empower the President to grant recess commissions to fill judicial vacancies. Article III, on the other hand, seems equally clear that only persons with the independence secured by life tenure and protection against diminished compensation may exercise the judicial power of the United States. The relevant portion of Article III states simply and unconditionally, The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office. U.S. Const, art. Ill, § 1. On its face, this language admits of no exception; its command is that only judges with Article III protections may wield Article III power. Hence, we face an extraordinary sitúation: a direct conflict between two provisions of the Constitution. No accommodation seems possible; one clause must yield to the other. The majority, in holding that Judge Heen could serve as an Article III judge without possessing Article III protections, resolves the conflict in favor of the Recess Appointments Clause. In doing so, it necessarily reads into the unambiguous language of Article III an exception for recess appointees. I recognize, of course, that the converse is also true: to hold that the Recess Appointments Clause does not apply to Article III judges would in turn mean reading an exception into that clause, That, in the last analysis, is the choice I believe we should make. Because I agree with the majority that the tension between these two contradictory provisions cannot be resolved solely by reference to the Constitution itself, turn next — as we customarily do when the meaning of the Constitution is not clear from its text — to the contemporaneous writings that reflect the thinking of the Framers. Unfortunately, those sources also fail to tell us which of the two competing clauses the Framers intended to prevail over the other. THE CONTEMPORANEOUS WRITINGS The contemporaneous writings of the Framers are virtually barren of any referenees to the Recess Appointments Clause, Although the record contains a few scattered references to the Clause, it was never explained, debated or discussed in any meaningful way. See Note, Historical Practice at 1766-73; Note, Recess Appointments at 126-130. Other than the ^ext of Article II, Section 2 itself, all we know is that the Clause was proposed just ten days before the end of the Constitution-Convention and was adopted without debate. 2 Farrand, The Records of the Federal Convention of 1787 540 (1911); C. Rossiter, 1787: The Grand Convention 224 (1966). Even The Federalist, normally a fruitful source of information on the thinking of the Framers, is almost silent on the subject of the President’s power to make recess appointments. The Federalist, No. 76, quotes the Clause itself but fails to mention the judicial branch of government. Although The Federalist, No. 78, does state that the “mode of appointing the judges ... is the same” as that “fully discussed in the two last numbers,” id. at 503, “the two last numbers” of The Federalist, Nos. 76 and 77, which were concerned with the appointment of other federal officers, include no reference to the Recess Appointments Clause other than its verbatim quotation at the outset of No. 76. In contrast to the paucity of comments on the Recess Appointments Clause by the Framers, the historical record is a cornucopia of references to the principle of life tenure enshrined in Article III. History makes absolutely clear the supreme importance the Framers attached to an independent judiciary as a vital corollary to the fundamental concept of the constitutional plan, the separation of powers. The experience of the Framers with the colonial judiciary had not been a happy one. The signers of the Declaration of Independence charged that the King “obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers. He has made Judges dependent on his Will alone for the tenure of their office and the amount and payment of their salaries.” The Declaration of Independence para. 11-12 (U.S.1776). The Framers recognized that these protections, when embodied in the Act of Settlement of 1701, had previously freed English judges from royal control. To translate their concern for judicial independence into practice, the Framers included in Article III the requirement that federal judges have permanent tenure and undiminishable compensation. See Pittman, The Emancipated Judiciary in America: Its Colonial and Constitutional History, 37 A.B.A.J. 485, 588 (1951). The Framers were, determined to ensure that federal judges would not be beholden to the executive or the legislature but only to the law and their own consciences. In contrast with the dearth of references to the Recess Appointments Clause, the contemporaneous writings overflow with commentary on the fundamental importance of permanency in office as the cornerstone of an independent judiciary. Alexander Hamilton, writing as Publius, eloquently expressed the concerns of the Framers: [A]s liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed or influenced by its coordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security. The Federalist, No. 78 at 504-05 (emphasis added). Hamilton also articulated the Framers’ belief that life tenure was necessary to ensure that the judiciary would play its crucial role as the guardian of individual liberty against the power of government: If then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in judges which must be essential to the faithful performance of so arduous a duty. The Federalist, No. 78 at 508. Thus, the letter as well as the spirit and guiding intention of Article III is inconsistent with the exercise of judicial power by recess appointees whose tenure is dependent upon both political branches of government. In sum, the Framers left us an abundance of commentary on Article III, but only a few scattered general references to the Recess Appointments Clause. The only explicit reference to the interaction of the two provisions is in Edmund Randolph’s letter to the Virginia House of Delegates explaining his reasons for not signing the proposed Constitution transmitted to the states by the Constitutional Convention. 3 Parrand, supra, 123-27. In his letter, Randolph argues that the Constitution had created an excessively powerful executive, citing as partial evidence for this view his belief that the Recess Appointments Clause gave the President the power of conferring judicial commissions during the recess of the Senate. There is no evidence, however, that Randolph’s comments about the Recess Appointments Clause in this letter represented anything other than the temporary position of a volatile political figure whose “gyrations” regarding both the value and meaning of the Constitution are well known to historians. See, J. Main, The Anti-Federalists: Critics of the Constitution, 1781-1788 257 (1961). By the time of Virginia’s state convention on the Constitution, Randolph had so far banished his earlier doubts regarding the Constitution that he had actually become one of its “staunchest supporters.” G. Bancroft, History of the Formation of the Constitution of the United States 316 (1882). Contrary to the impression created by his letter, Randolph stated at the Virginia convention that the powers of the President were in all respects carefully circumscribed: “He can do no important act without the concurrence of the Senate.” 3 J. Elliott, The Debates in the Several State Conventions on the Adoption of the Federal Constitution, 201 (1907) (5 vols.) [hereinafter cited as Elliott’s Debates]. He attacked the provisions for the appellate jurisdiction of the federal judiciary, but he maintained that judicial independence had been adequately guaranteed. 3 Elliott’s Debates 205. Despite the fact that Randolph consistently highlighted the flaws in the Constitution for the benefit of his fellow members of the Virginia state convention, he never repeated his original concern about the Recess Appointments Clause, even on the day the Clause was read aloud to the Virginia convention. In fact, the Virginia convention did not discuss the Clause at all. 3 Elliott’s Debates. As at the other state conventions, the only doubts raised at the Virginia convention about the independence of the judiciary stemmed from the fact that the Constitution did not prohibit augmentation of judicial salaries, not from the Recess Appointments Clause. 3 Elliott’s Debates 517. Other than Randolph’s letter, there is no evidence in any of the extant records of the Constitutional Convention or of the various state conventions that the Framers intended the Recess Appointments Clause to apply to the judiciary. See Farrand, The Records of the Federal Convention of 1787 (1911); J. Strayer, The Delegate from New York (1939) (Constitutional Convention Notes of John Lansing, Jr.); Hutson, “John Dickinson at the Federal Constitutional Convention,” 40 William and Mary Quarterly 256 (1983); Elliott, The Debates in the Several State Conventions on the Adoption of the Federal Constitution (1907). For all the record shows, the Framers’ attention was never focused on the conflict. If it did occur to them, it was not mentioned in the debates. As one commentator concludes, “The legislative history of article III and of the recess appointments clause reveals no specific intent on the part of the framers regarding how the two provisions would interact.” Note, Historical Practice at 1768. Thus, the contemporaneous writings contain scant mention of the Recess Appointments Clause. They do contain extensive commentary on Article III, but with the isolated exception of Randolph’s letter, the contemporaneous writings do not address the relationship between the two clauses. As one scholarly commentary concluded: Although the legislative history of the recess appointments clause arguably supports extending the clause to vacan-eies in the federal judiciary, this evidence must be balanced against the heavy emphasis that article Ill’s legislative history places on the value of judicial independence. Taken together, therefore, the legislative history of the two provisions is equally capable of supporting either of two interpretations: that the recess appointments clause was intended as a limited exception to article Ill’s tenure and salary provisions, or that the tenure and salary provisions are absolute requirements and the recess appointments clause was therefore not intended to extend to vacancies in the federal judiciary. Note, Historical Practice at 1773. TU CONSTITUTION AT VAT TIES III. CONSTITUTIONAL VALUES A. The role of values in constitutional interpretation The first step in the inquiry, examination of the constitutional text, and the second step, exploration of the contemporaneous writings, leave us with an unresolved conflict between two provisions of the Constitution and no real indication of how the Framers intended the two clauses to interact. Thus, the next step in our analysis— weighing the values that animate the two provisions — becomés a vital part of the interpretive process. Only after that step is completed will I turn to the historical practice of using the recess appointment power to fill vacancies in Article III courts. The majority, in contrast, simply omits the step of weighing the competing values, resulting in a truncated analysis based almost entirely on historical practice. The Supreme Court has consistently observed the principle that in interpreting the Constitution, we are to be mindful of the concerns that animate its various provisions. See e.g., Virginia v. Tennessee, 148 U.S. 503, 519, 13 S.Ct. 728, 734, 37 L.Ed. 537 (1893); Legal Tender Cases, 79 U.S. (12 Wall.) 457, 531, 20 L.Ed. 287 (1870); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 187, 6 L.Ed. 23 (1824). The classic statement was provided in Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 536, 10 L.Ed. 1060 (1842): it will, indeed, probably, be found, when we look to the character of the constitution itself, the objects which it seeks to attain, the powers which it confers, the duties which it enjoins, and the rights which it secures, as well as the known historical fact, that many of its provisions were matters of compromise of opposing interests and opinions, that no uniform rule of interpretation can be applied to it, which may not allow, even if it does not positively demand, many modifications, in its actual application to particular ciauses_ And, perhaps, the safest rule of interpretation, after all, will be found to be to look to the nature and objects of the particular powers, duties and rightS) with all the lights and aids of contemporary history; and to give to the words of each just such operation and force, consistent with their legitimate meaning, as may fairly secure and attain fhe ends proposed— If, by one mode of interpretation, the right must become shadowy and unsubstantial, and without anY remedial power adequate to the end, and by another mode, it will attain its jnst end and secure its manifest purpose, it would seem, upon principles of reasoning, absolutely irresistible, that the latter ought to prevail, Id. 41 U.S. (16 Pet.) at 610-12. Inquiry into fundamental constitutional values is especially important when two provisions of the Constitution are in tension with each other. The Court’s attempt to resolve the conflict between the two religion ciauses 0f the First Amendment illustrates the essential process of weighing competing constitutional values. The Establishment Clause and the Free Exercise Clause are both cast in absolute terms, and either of them, if expanded to a logical extreme, would tend to clash with the other. Walz v. Tax Commission, 397 U.S. 664, 668-69, 90 S.Ct. 1409, 1411-12, 25 L.Ed.2d 697 (1970). In resolving this tension, the Supreme Court attempts to strike a balance between the values implicated by the two clauses. In balancing the Establishment Clause and the Free Exercise Clause, Both the Court and various commentators have explored the historical background of the first amendment in order to guide interpretation of the two religion clauses, but here as elsewhere, “too literal [a] quest for the advice of the Founding Fathers” is often futile. The historical record is ambiguous, and many of today’s problems were of course never envisioned by any of the Framers. Under these circumstances, one can only examine the human values and historical purposes underlying the religion clauses to decide what doctrinal framework might best realize those values and purposes today. L. Tribe, American Constitutional Law, § 14-3 (emphasis added). Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976) — a case involving a conflict between the fair trial guarantee of the Sixth Amendment and the free press command of the First Amendment — further illustrates how the Court weighs competing values in interpreting and applying the Constitution. In Nebraska Press, the Court was confronted with a “prior restraint imposed to protect one vital constitutional guarantee and the explicit command of another that the freedom to speak and publish shall not be abridged.” 427 U.S. at 570, 96 S.Ct. at 2808. The Court adopted a balancing approach, determining “as Learned Hand put it, [whether] ‘the gravity of the “evil,” discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.’ ” Id. at 562, 96 S.Ct. at 2804. Implicitly, Nebraska Court resolves the tension between the First and Sixth Amendments by balancing the values of free speech against those of fair press on a case-by-case basis. The Court concluded that the prior restraint was invalid because the state had not met the “heavy burden” required to justify a prior restraint; thus, in the particular case, the Court decided the balance favored the values embodied in the First Amendment. We cannot adopt such a case-by-case balancing approach to resolve the tension between the Recess Appointments Clause and Article III, because the question whether recess appointees may exercise the judicial power of Article III demands a categorical yes or no answer. Nevertheless, both Walz and Nebraska Press suggest that the resolution of conflict between two provisions of the Constitution requires an evaluation and balancing of underlying values. Our next step, therefore, is to evaluate and balance the competing values underlying the Recess Appointments Clause and Article III. B. The competing values animating the two clauses We begin the process of weighing the competing values by considering the values that animate Article III. There can be no doubt that the Framers considered the salary and tenure protections of Article III to be critical institutional safeguards of judicial independence. Recently, in Pacemaker Diagnostic Clinic of America v. Instro-medix, 725 F.2d 537, 541 (9th Cir.1984) (en banc), our court reaffirmed this fundamental constitutional value: “The attributes of Article III judges, permanency in office and the right to an undiminished compensation, are as essential to the independence of the judiciary now as they were when the Constitution was framed.” The Supreme Court stressed the importance of Article III safeguards to judicial independence in Northern Pipeline Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982): In sum, our Constitution unambiguously enunciates a fundamental principle — that the “judicial Power of the United States” must be reposed in an independent Judiciary. It commands that the independence of the Judiciary be jealously guarded, and it provides clear institutional protections for that independence. Id. at 60, 102 S.Ct. at 2866; see also United States v. Will, 449 U.S. 200, 217-18, 101 S.Ct. 471, 481-82, 66 L.Ed.2d 392 (1980) (“A Judiciary free from control by the Executive and the Legislature is essential if there is a right to have claims decided by judges who are free from potential domination by other branches of government.”). In my view, the majority simply fails to take the institutional protections of Article III as seriously as our court did in Pacemaker and the Supreme Court did in Marathon; indeed, the majority denigrates the tenure and salary provisions when it argues that there are no examples of executive or legislative coercion of a recess appointee. This rationale implies that the institutional protections of Article III are of little consequence because we can rely on the integrity and courage of individual judges to assure judicial independence. The Framers, quite obviously, did not share that view. Rather, they were firm in their conviction that permanency of office and salary protection were crucial institutional safeguards against encroachment on the judicial power by the political branches. As our court stated recently, “[Ojur own experience attests to the substance and reality of [Article Ill’s] guarantees. A separate and independent judiciary, and the guarantees that assure it, are present constitutional necessities, not relics of antique ideas.” Pacemaker, 725 F.2d at 541. Moreover, we must preserve not only the reality but also the appearance of judicial independence. Public confidence in the integrity and independence of the courts is imperative, especially when a constitutional confrontation between the judiciary and the political branches creates a national crisis. Such confidence could be threatened if, for example, recess appointees were called upon to participate in a highly charged case involving the constitutional limits on presidential power. The facts of Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) provide a thought provoking historical hypothetical. Imagine a recess appointee sitting on a Supreme Court that was otherwise divided, four to four, on the question of the constitutionality of President Truman’s steel mill seizure. Imagine further that this hypothetical justice is courageous and intends to vote Ms conscience. Were he to believe the President’s action in seizing the mills was unconstitutional, the recess appointee would confront the possibility that an infuriated President might withdraw his nomination. If, on the other hand, the justice were to believe the seizure was constitutional, he would find it difficult if not impossible to avoid the appearance that his tie breaking vote had been influenced by the President’s power to cut short his tenure on the Court. United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) is another case from our recent past in which public faith in the independence of the judiciary could have been shaken if a recess Supreme Court appointee had provided a swing vote. These historical hypo-theticals graphically illustrate the importance of the tenure and salary provisions of Article III as safeguards against institutional destabilization. Fortunately, we have not had to confront these disturbing scenarios, because circumstances have not yet combined to produce a recess appointment to our highest court during such trying times of national crisis. There are, however, no guarantees against such an occurrence. Entrusting the decision in such cases — where the constitutional limits of presidential power are on the line — to judges whose office depends on whether the President decides to withdraw their nomination, would threaten seriously the ideal of separation of powers. Yet, if the majority’s approach prevails, it may take a crisis of the magnitude of Youngstown or United States v. Nixon to cause us to regret today’s decision. The threat of institutional destabilization posed by recess appointments is not purely hypothetical. History informs us that during the civil rights struggle of the 1960’s, political pressures induced recess appointees to avoid politically sensitive cases. A writer of contemporary history has recounted some of the events of that turbulent period: [Griffin] Bell and [Walter] Gewin both began service on the Fifth Circuit on October 6, 1961, with interim appointments so they could begin work on the overloaded backlog of cases. But their appointments would not become final until after confirmation hearings by the Senate Judiciary Committee and approval by the Senate the following March. At an initial meeting with [Chief Judge Elbert] Tuttle, Bell suggested that the sensitivity of race cases was such that they might create problems for Gewin at the . confirmation hearings. Tuttle agreed and said he would not assign such cases to Gewin until after confirmation and for the same reason would also withhold such assignments from Bell. J. Bass, Unlikely Heroes 164 (1981). The difficulty with such judicial accommodation to political pressure is that it requires the assignment process itself to depart from strict neutrality and enter the realm of political machination. Yet, a fundamental purpose of Article III was to isolate the judiciary from just such political entanglements. The strain on judicial independence and the threat to the appearance of independence exemplified by the Fifth Circuit’s experience during the struggle for civil rights and the confrontation of Justice Brennan by Senator McCarthy are but two examples of the potentially pernicious effects of departing from the Article III mandate that judicial power be exercised only by judges with permanent tenure and protection against diminution of salary. We have no way of knowing how many other recess appointees may have been shunted away from controversial cases because they were vulnerable to political retaliation for unpopular decisions. Nor do we have any way of knowing if a judge privately succumbs to intense pressure and decides a case in a manner that ensures his confirmation rather than according to the dictates of legal principle and precedent. What we do know is that the constitutional plan of separation of powers rests on clear institutional protections for judicial independence. The concerns for efficiency, convenience, and expediency that underlie the Recess Appointments Clause pale in comparison. The purpose served by the President’s power to fill judicial vacancies during a recess of the Senate is obviously to avoid delay in the administration of justice in federal courts. I recognize that such a recess commission allows a new judge to begin working immediately on a backlog of cases rather than waiting for the Senate to reconvene. There are ways, however, of coping with pressing caseloads without compromising the principle of judicial independence. Because district and circuit judges are largely interchangeable, interdistrict or intercircuit assignments provide an expedient and effective way of dealing with a short term problem. Such transfers are a common practice in the federal judicial system. When it comes to the Supreme Court, different considerations might come into play. In the event of a freak accident — for example, the deaths of enough Supreme Court Justices to void a quorum — use of the executive’s recess appointment power could be one way to deal with an emergency. Congress, however, has the authority to provide for such exigencies in ways that do not compromise judicial independence. When, for example, the Supreme Court is unable to muster a quorum to hear a direct appeal from a district court, it is directed by statute to remand a case for decision by a special panel of the circuit that includes the district from which the appeal was taken. 28 U.S.C. § 2109 (1982); see also United States v. Aluminium Co. of America, 148 F.2d 416, 421 (2d Cir.1945) (example of such a special panel). Moreover, in the unlikely event of a true emergency demanding immediate action when the Supreme Court lacks a quorum, the Senate can reconvene in a matter of days, if not hours to perform its constitutional role— giving “advice and consent” to the executive’s judicial nominations. The majority asserts that the Recess Appointments Clause is necessary to avoid “the denial of the important right of access to the courts” and to prevent “the executive from being incapacitated during the recess of the Senate”; it does not, however, cite a single instance when use of the recess appointment power was necessary to achieve those objectives. Indeed, the majority presents no evidence that any President made a recess appointment to ensure the continued functioning of the judiciary through a crisis that could not have been handled by existing Article III judges. With one exception, the federal courts have functioned since 1964 without the assistance of recess appointees. The sole exception is Judge Heen. Thus, could we set historical practice aside, I believe our decision today would be relatively easy. Given that the language of the two clauses is in conflict and that the intentions of the Framers are unclear, the principles that animate the salary and tenure provisions of Article III — judicial independence and separation of powers — clearly outweigh the concerns of expediency and efficiency that underlie the Recess Appointments Clause. In other words, if we were writing on a clean slate, if we were reviewing Judge Heen’s recess commission without history to support it, I find it inconceivable that we would interpret the Constitution as the majority does today — subordinating Article III values to the executive’s general power to make recess appointments. With that thought in mind, I turn to the role of historical practice in the constitutional equation. IY. HISTORICAL PRACTICE The fourth step of the inquiry — factoring the historical practice of recess judicial appointments into the constitutional analysis — brings into sharp relief the majority’s almost exclusive reliance on a unilateral practice of the executive as the justification for finding the practice to be constitutional. A. The judicial role: Evaluation of historical practice In two recent cases, Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983), and Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), the Supreme Court developed an analytic framework for evaluating historical practice in constitutional interpretation. Cha-dha teaches us that even a long historical pedigree does not conclusively establish the constitutionality of a practice. Marsh illustrates that in limited circumstances historical practice may be an accurate guide to the intentions of the Framers. The two cases together establish the principle that the courts must critically evaluate a historical practice before deciding how much weight to accord it in the process of interpreting the Constitution. In Chadha, the Supreme Court resolved a conflict between historical practice and the principle of separation of powers, analogous to the conflict we confront today. At issue was the constitutionality of a statute authorizing one house of Congress to invalidate by resolution a decision of the executive branch made pursuant to con-gressionally delegated authority. When the Court decided Chadha, the one-house veto was a practice of long and continuous standing. See Chadha, 103 S.Ct. at 2793 (White, J., dissenting). Yet, that fact did not deter the Court from declaring the practice unconstitutional. In fact, Chief Justice Burger noted that “our inquiry is sharpened rather than blunted by the fact that Congressional veto provisions are appearing with increasing frequency in statutes which delegate authority to executive and independent agencies ____” Chadha, 103 S.Ct. at 2781. The teaching of Chadha is clear. Historical practice is not irrelevant to Constitutional inquiry, but it will not “save [a practice] ... if it is contrary to the Constitution.” Id. 103 S.Ct. at 2781. Chadha does not, I hasten to add, stand for the proposition that historical practice has no role to play in constitutional interpretation. Indeed, Marsh v. Chambers is authority that a practice with a lineage that can be traced back t