WASHINGTON (BP)–A U.S. appeals court ruled in favor of President Bush Oct. 14, saying his decision to appoint William Pryor to the 11th Circuit Court of Appeals during a five-day Senate recess was constitutional.
Pryor, the former Alabama attorney general, was one of 10 Bush nominees that have been filibustered by Senate Democrats. Though he received enough votes for confirmation, he did not receive the 60 votes necessary to overcome what Bush called “the unprecedented obstructionist tactics” of Democratic filibusters.
Bush used the President’s Day break to appoint Pryor, but Sen. Edward Kennedy, D.-Mass., argued that his action violated the Senate’s right to confirm or reject federal judicial nominees. In an 8-2 vote, the 11th Circuit rejected Kennedy’s complaint, noting the president is permitted to appoint federal judges without Senate approval when it is out of session.
“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,” the court said.
The American Center for Law and Justice, which had filed an amicus brief in support of Pryor’s appointment, praised the court’s decision.
“We’re pleased that the appeals court acted to protect the constitutional authority of President Bush in making recess appointments to the federal judiciary,” Jay Sekulow, chief counsel of the ACLJ, said. “From the beginning, it was our view that Sen. Kennedy’s challenge was legally flawed and we expected that his lawsuit challenging Judge Pryor’s appointment would fail.”
Kennedy indicated he would appeal to the U.S. Supreme Court.
“Obviously, I disagree with the court’s view that the president can bypass the Senate’s constitutional role and appoint a federal judge during any Senate break, no matter how short,” he said in a statement. “… I’m pleased, however, to see that all the judges on the Circuit agree that this important question is ready for the Supreme Court to resolve now, and I’m hopeful that the justices will agree to do so.”
Because recess appointments, unlike regular judicial appointments, are temporary, Pryor will serve until January 2005 when the next Congress is sworn in. If the president wants him to remain on the bench, Pryor will have to be renominated.
When Bush appointed Pryor, a pro-life Catholic layman who had been Alabama’s attorney general since 1997, the president said Pryor “has had a distinguished career as a public servant and practicing attorney.”
“His impressive record demonstrates his devotion to the rule of law and to treating all people equally under the law,” Bush said. “He has received widespread bipartisan support from those who know him and know his record. I am proud to name this leading American lawyer to the appellate bench.”
Bush said Pryor would “fill a seat on the 11th Circuit that has been designated a judicial emergency. He will perform a valuable service on a court that needs more judges to do its work with the efficiency the American people deserve and expect.”
Sekulow expressed assurance that Pryor’s appointment would be supported by the high court.
“We are confident that the president’s authority will be upheld and urge Sen. Kennedy to end his challenge to Judge Pryor’s appointment and bring an end to the obstructionist tactics he is utilizing in the Senate to prevent up-or-down votes on President Bush’s nominees.”