updated 3/8/2004 2:57:51 PM ET 2004-03-08T19:57:51

President Bush’s appointment of former Alabama Attorney General William Pryor to the U.S. Appeals Court during a congressional recess may be unconstitutional, contends Sen. Edward Kennedy, D-Mass.

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Bush on Feb. 20 gave Pryor an almost two-year stint on the 11th U.S. Circuit Court of Appeals in Atlanta, calling him a “leading American lawyer” and saying Democrats had used “unprecedented obstructionist tactics” last year to stop his confirmation by the Senate.

The appointment came on the last day of Congress’s weeklong President’s Day holiday break. The Constitution gives the president authority to install nominees in office when Congress is not in session.

Pryor has already been sworn in.

Kennedy questions timing
In a letter released Monday, Kennedy, a high-ranking member of the Senate Judiciary Committee, wrote to the 11th U.S. Circuit Court of Appeals that “a serious question exists as to whether Judge Pryor’s recess appointment is constitutional.” He asked the court to determine the validity of the appointment, so as to not taint any decisions in which Pryor may be involved.

Recess appointments can only come “at the end of a Congress or the recess between the annual sessions of Congress,” Kennedy wrote.

“No other Article III judge in the nation’s history has ever received a recess appointment during a brief holiday period in the midst of a session of Congress,” Kennedy added in a memo attached to the letter.

Article III judges — those appointed under Article III of the Constitution — include judges on the Supreme Court, the U.S. Appeals and District courts and the judges of the Courts of International Trade.

“The judges of the Court of Appeals for the 11th Circuit cannot and should not allow its upcoming cases to be tainted by the presence ... of a judge who may well be constitutionally or statutorily ineligible to sit,” Kennedy said.

Administration responds
The White House on Monday defended Pryor’s appointment as proper.

“The president properly exercised the power granted to him by the U.S. Constitution,” White House spokeswoman Erin Healy said. “Judge Pryor’s appointment was thoroughly reviewed by the Department of Justice and is fully consistent with long standing practices of both Democrat and Republican administrations.”

Under Bush’s recess appointment, Pryor will sit on the 11th Circuit until January 2006. The Atlanta-based court that hears federal appeals from Alabama, Georgia and Florida.

Liberal groups campaigned against Pryor’s ascension to the federal appeals court, citing his criticism of the Supreme Court’s Roe v. Wade decision that said women had a constitutional right to terminate pregnancy. He also came under fire for filing a Supreme Court brief in a Texas sodomy case comparing homosexual acts to “prostitution, adultery, necrophilia, bestiality, possession of child pornography and even incest and pedophilia.”

Pryor was a founder of the Republican Attorneys General Association, which raises money for GOP attorneys general, and led the charge to oust Alabama’s chief justice, Roy Moore, for refusing to abide by federal court orders requiring him to move a Ten Commandments monument from his courthouse.

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