Supreme Court sidesteps dispute over Bush's antigay recess appointment

BY admin

March 22 2005 12:00 AM ET

The U.S. Supreme Court, dodging a charged dispute over judicial nominations, declined Monday to consider whether President Bush overstepped his bounds in naming a federal judge while Congress was on a short break.

The court refused to hear a trio of cases challenging the "recess appointment" of William Pryor to the Atlanta-based 11th U.S. circuit court of appeals last year. The suits argued that Pryor's temporary appointment was an end run around the Senate's right to confirm or reject judicial nominees.

The justices' move avoids a contentious issue on the eve of a widely speculated vacancy on the court. If they had intervened, it would have set up a constitutional showdown over White House powers at a time when ailing chief justice William H. Rehnquist is considered a strong prospect to step down this
term.

The Constitution gives presidents authority to fill vacancies for a year or two during a Senate "recess." At issue was whether a "recess" means whenever the Senate is not meeting, such as during short intrasession breaks, or only during the Senate's annual adjournment at year's end.

In a statement accompanying the curt denial, Justice John Paul Stevens emphasized that the court did not necessarily reject the case because the appeal lacked merit. He suggested justices might be interested in hearing the case later, when the appeals have run their full course in the lower courts.

"It would be a mistake to assume that our disposition of this petition constitutes a decision on the merits of whether the president has the constitutional authority to fill future [judicial] vacancies, such as vacancies on this court," Stevens wrote.

Earlier this month Bush renominated Pryor, whose term is scheduled to expire at the end of the year, for a lifetime appointment on the 11th circuit. "The president asserts the power to make 'recess appointments' of judges during any break of the Senate--including, literally, even a break for lunch,"
wrote Thomas Goldstein, a Washington attorney representing Massachusetts senator Edward Kennedy in the cases. "That unprecedented conception of the recess appointments power obviously vitiates the cardinal authority of the Senate to pass on the president's nominees," he stated.

Bush administration lawyer Paul Clement countered that it has been long-standing practice for presidents of both parties to make recess appointments, including 12 Supreme Court justices, any time the Senate is not meeting. "A recess appointment power that could be freely invoked during a one-day intersession recess but would be categorically barred during a three-month intrasession recess would be 'irrational,"' Clement wrote, noting that intrasession recesses often are one month or more.

Bush named Pryor, a former Alabama attorney general, to the 11th circuit during a Presidents' Day recess in February 2004, after the Senate refused twice to bring his nomination to a floor vote. The 11th circuit serves Alabama, Florida, and Georgia.

His nomination had languished in 2003 as abortion rights advocates fought Pryor over his criticism of the Supreme Court's Roe v. Wade decision, which legalized abortion. Pryor also was lambasted for filing a Supreme Court brief that compared homosexual acts to incest and pedophilia.

Kennedy and other Democrats said the recess appointment during the 11-day break was improper, arguing that Congress would have to meet every day to avoid presidential power grabs. But Pryor's colleagues on the 11th circuit ruled 10-2 last fall that it was constitutional. "We are not persuaded that the president acted beyond his authority in this case: Both the words of the Constitution and the history of the nation support the president's authority," wrote Chief Judge J.L. Edmondson, a Reagan appointee.

Pryor, who is scheduled to remain on the 11th circuit until the end of this year, removed himself from the case. If the Supreme Court had accepted the appeal, it would have put in doubt dozens of criminal and civil cases in which Pryor participated.

In addition to Pryor, Bush used a recess appointment last year to install Charles Pickering of Mississippi to an appeals court, another nomination Senate Democrats had blocked. Pickering announced in December that he would not seek the nomination for a permanent seat on the 5th U.S. circuit court of appeals in New Orleans; Bush renominated Pryor for a lifetime seat last month. (AP)

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