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Court Upholds Bush's Appointment of Pryor During Senate's Recess

'''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''
( [email protected] ) Oct 18, 2004 09:15 PM EDT

President Bush did not overstep his authority when he appointed William Pryor to a seat on the U.S. Court of Appeals for the Eleventh Circuit while the Senate was on a holiday break, ruled a federal appellate court on Oct. 14.

In an 8-to-2 decision, the U.S. Court of Appeals for the Eleventh Circuit rejected Senator Ted Kennedy’s argument that the appointment of Pryor during the President's Day break in February violated the Senate's right to confirm or reject federal judicial nominees. The court ruled that Bush's authority to appoint the former Alabama judge was backed by the Constitution.

''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," Chief Judge J.L. Edmonson said.

Judges that approved of Pryor’s appointment were Judges Gerald B. Tjoflat, R. Lanier Anderson III, Stanley F. Birch Jr., Joel F. Dubina, Susan H. Black, Frank M. Hull and Stanley Marcus. Judges Rosemary Barkett and Charles R. Wilson dissented, saying the U.S. Supreme Court should decide the case.

Bush nominated Pryor in 2003 but the nomination never made it to a floor vote in the Senate since filibustered twice by Democrats, many of who oppose Pryor’s outspoken view against abortion and homosexuality. The President later appointed Pryor to the U.S. Court of Appeals for the Eleventh Circuit.

While Kennedy acknowledged that Article II of the Constitution gives presidents the power to "fill up all Vacancies that may happen during the Recess of the Senate," he argued that it only applied to recesses between sessions of Congress and not holiday breaks.

"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," Kennedy said in a statement on Thursday.

He said he was "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."

Barkett agreed with Kennedy, writing in her opinion, "The majority's interpretation gives a President the ability to appoint someone without regard to whether the Senate has in fact been available to consider that nominee.”

However, the majority of the court did not find his argument. "Just to show that plausible interpretations of the pertinent constitutional clause exist other than that advanced by the President is not enough."

The American Center for Law and Justice, a legal group that specializes in constitutional law, praised the court’s ruling.

“From the beginning, it was our view that Senator Kennedy’s challenge was legally flawed and we expected that his lawsuit challenging Judge Pryor’s appointment would fail,” said Jay Sekulow, Chief Counsel of the ACLJ.

“We now expect Senator Kennedy to appeal to the U.S. Supreme Court and we stand ready to support Judge Pryor’s appointment and the President’s authority to make such an appointment at the high court,” he said.

The ACLJ is also urging Kennedy to end his “obstructionist tactics” in preventing “up-or-down votes on President Bush’s nominees.”