A federal appeals court is asking the Bush administration to defend the president's appointment of a judge to its ranks while the U.S. Senate was out of session. The 11th U.S. Circuit Court of Appeals, based in Atlanta, asked the Justice Department on Monday to intervene in a case contesting the appointment of former Alabama attorney general William Pryor to that court. Sen. Edward Kennedy (D-Mass.) and others are backing a challenge in asking the court to rule that the appointment was unconstitutional. Bush appointed Pryor in February during a one-week recess of the Senate, which must confirm judicial nominees. The Constitution gives the president the right to appoint judges directly when Congress is not in session.
But Kennedy and others argue that right is valid only at the end of a congressional session or during the recess between annual sessions, not during short breaks. "It's hard to imagine a more flagrant attempt by the president to bypass the constitutional requirement of Senate consent in appointing a federal judge," Kennedy said in a written statement. Democrats had blocked Pryor's confirmation, citing his criticism of the Supreme Court's Roe v. Wade abortion decision. He was also criticized for a
Supreme Court brief in which he compared gay sex to "prostitution, adultery, necrophilia, bestiality, possession of child pornography, and even incest and pedophilia." Kennedy raised a legal challenge in June, but the court said he missed a filing deadline. He is now backing a challenge to Pryor raised as part of a civil rights case involving college students who were strip-searched after being stopped by police in Georgia.