Dennis Cook  /  AP file
William Pryor explains his views to the Senate Judiciary Committee on June 11, 2003. Senate Democrats later stymied his appeals court nomination wiith a filibuster.
By Tom Curry National affairs writer
updated 1/14/2005 8:48:25 AM ET 2005-01-14T13:48:25

It was one bitter episode in the long-running feud over President Bush’s judicial nominees: Senate Democrats were dead-set against Alabama Attorney General William Pryor serving as a federal appeals court judge, so they talked his nomination into the ground, twice foiling Republican attempts to get the 60 votes needed to overcome the filibuster.

But Bush outmaneuvered them, putting Pryor on the bench last February by waiting until the Senate took a recess and using his power under article II of the Constitution to give him a recess appointment

The Democrats filbustered 10 of Bush’s judicial nominees in his first term, the most aggressive use of that tactic in Senate history. The Senate confirmed 204 Bush judicial nominees.

The filibuster feud has become so engrossing that now Pryor’s adversaries are urging the Supreme Court to join the brawl by ruling that Bush’s appointment of Pryor violated the Constitution.

By Monday, the justices will likely announce whether they’ll hear the Pryor case in their current term, which ends in June.

Bush renominates Pryor
Pryor’s recess appointment is good until the end of this year. And Bush announced on Christmas Eve that he would renominate Pryor for the bench, setting the stage for renewed confirmation combat.

The justices could decide to refuse to take the case, letting the judge finish out his recess appointment. Or they could decide they must resolve a serious constitutional issue: When can the president use his recess appointment power?

The Constitution says 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.”

On Dec. 27, 2000, a few weeks before his presidency ended, President Clinton used the recess appointment power to put Roger Gregory, a nominee stalled by Sen. Jesse Helms, R-N.C., on the Fourth Circuit appeals court. Bush renominated Gregory in 2001 and the Senate confirmed him.

George Washington was the first president to use recess appointments to put judges on the bench and it has been used sporadically ever since. President Eisenhower used the recess appointment power to place Supreme Court justices Earl Warren, William Brennan and Potter Stewart on the bench. They took part in decisions before their appointments were confirmed by the Senate.

Pryor’s appointment raised Democrats’ hackles, due to his outspoken conservatism, his pungent manner of expression, and the fact that Bush had outwitted the Democrats' filibuster strategy.

Among Pryor’s comments before he became a judge: calling the Supreme Court’s 1973 Roe vs. Wade decision legalizing abortion “the worst abomination of constitutional law in our history.”

Pryor told his confirmation hearing in 2003 that the Roe decision “has led to the slaughter of millions of innocent unborn children.”

Kennedy: 'alarmingly politicized'
Sen. Edward Kennedy, D-Mass., accused Pryor of having “an alarmingly politicized view of the judiciary.” After Pryor sharply criticized the Illinois moratorium on carrying out death penalty sentences, Sen. Patrick Leahy, D-Vt., said “you wonder how he can be relied upon to hear these cases fairly.”

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A conservative advocacy group, the Committee for Justice, enraged Judiciary Committee Democrats by running TV ads accusing Pryor’s foes of anti-Catholic prejudice. Pryor is a Catholic and his defenders say his anti-abortion views are rooted in his religious faith.

It’s easy to see why Democrats are going to extraordinary lengths to try to have Pryor booted off the bench. What isn’t easy to see is whether the Supreme Court will want to jump into this take-no-prisoners battle.

The high court has never ruled on recess appointments to the courts, although two appeals courts, one in 1962 and one in 1985, upheld their constitutionality.

“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 last year after he filed friend-of-the-court briefs in three separate cases seeking a Supreme Court reversal of Pryor’s recess appointment.

When Bush put Pryor on the bench, the Senate had taken only a 10-day, intra-session recess, not an end-of-session recess. Pryor foes argue there was no basis for Bush to act since the Senate was to come back into session in only 10 days.

Fellow judges rule on Pryor
But last October, 10 of Pryor’s fellow judges on the 11th Circuit, which has jurisdiction over Alabama, Florida and Georgia, ruled that his appointment was constitutional.

Pryor and the judge who swore him in recused themselves from the case, brought by two Georgia men, Peter Evans and Detree Jordan, convicted of reckless driving who filed a federal suit claiming they had been subject to an illegal search by the arresting officer.

The lawyers for Evans and Jordan urged the 11th Circuit judges to disqualify Pryor from taking part in hearing their appeal.

In other 11th Circuit cases, lawyers for a Florida man convicted of a drug offense, Shannon Miller, have also gone to the Supreme Court challenging the validity of Pryor’s appointment, as has an attorney for Charles Franklin, convicted of driving a truck into a Tallahassee, Fla., mosque, in violation of a federal law making it a crime to damage religious property if motivated by ethnic bias.

Pryor served on the three-judge panels that upheld the Miller and Franklin convictions.

In the Evans-Jordan case, by an 8-2 vote, the 11th Circuit judges said, “We are not persuaded the President exceeded his constitutional authority in a way that causes Judge Pryor’s judicial appointment to be invalid.”

The judges pointed out that both Presidents Truman and Nixon had appointed judges during intra-session Senate recesses, a 35-day recess in Truman’s case, a 32-day recess in Nixon’s.

One of the dissenting judges, Charles Wilson, appointed to the bench by President Clinton in 1999, said the 11th Circuit judges should have passed the Pryor problem on to Supreme Court.

“It is simply inappropriate for the members of a court to sit in judgment of a colleague’s legitimacy,” Wilson said. “An observer might assume that a desire to protect collegial relations, or a personal affinity for Judge Pryor developed over the course of his service to our Court, might have weighed in the decision not to remove him.”

The other dissenter, Judge Rosemary Barkett, a 1994 Clinton appointee to the court, said the president can make appointments only to fill vacancies that happen to occur during a recess. The slot on the 11th Circuit that Pryor filled had been vacant for months; it didn’t happen to become vacant during that 10-day recess.

Sidestepping the Senate
Ordinarily, Barkett said, the Senate has the power to vote to confirm or not confirm a president’s nominees. “The Senate’s refusal to consent to a presidential nomination does not justify the President in circumventing the text and structure of the Constitution,” she said.

Pryor’s allies contend, contrary to Barkett, that the Senate did not refuse to consent to Pryor’s nomination — in fact, it never got a chance to vote on it at all due to the filibuster supported by only a minority, 44 Democratic senators.

While the battle rages, Pryor has been participating in cases.

Showing how important one judge can be, Pryor cast a decisive vote when the full 11th Circuit panel of 12 judges, by a 6-6 vote, chose to not reconsider a ruling upholding a Florida law barring homosexuals from adopting children.

Had it not been for Pryor, the full 11th Circuit panel would have re-heard the case and possibly overturned the Florida law.

More often in the judiciary than in elections, every vote counts.

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