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The running fight between the White House and Senate Democrats over appellate court nominees has escalated another notch with U.S. Sen. Edward “Ted” Kennedy’s warning to the 11th U.S. Circuit Court of Appeals that its decisions will be tainted if it allows President Bush’s recess appointment to immediately begin deciding cases. Bush named William H. Pryor Jr., the former attorney general of Alabama, to the court in a recess appointment on Feb. 20. By doing so, he temporarily bypassed the Senate, where a filibuster had stalled Pryor’s appointment. In a March 5 letter addressed to each of the 11th Circuit judges at Atlanta, Sen. Kennedy of Massachusetts wrote that “a serious question exists” about the constitutionality of that appointment. Kennedy, who sits on the Senate Judiciary Committee, asked the judges of the 11th Circuit, which covers Florida, Alabama and Georgia, to address the “purported” recess appointment of Pryor “so that the validity of his participation in cases be resolved in advance, without subjecting future decisions to challenge.” Kennedy’s accompanying 10-page legal memo accuses the president of taking action “to evade the constitutional requirement of advice and consent” in his zeal to put Pryor in an 11th Circuit robe, “rather than to serve any legitimate constitutional goal.” In his memo, Kennedy buttressed his position by citing the U.S. Supreme Court’s decision last year in Nguyen v. United States. In that case, the justices held that a decision rendered by an improperly constituted appellate court panel is invalid. Some federal appeals court practitioners in South Florida see Kennedy’s argument as offering possible grounds for appeal from adverse 11th Circuit rulings. “The argument is not as nutty as it may initially sound,” wrote Assistant Miami-Dade County Attorney Richard B. Rosenthal, who handles appeals for the county, in an internal e-mail March 9 to fellow staffers. “It may provide a last-ditch argument if you receive an unfavorable ruling from a panel that includes Judge Pryor . . . [or] theoretically you could be asked this question at oral argument if Judge Pryor ends up on your panel.” “On its face, it looks like a bona fide argument,” said appellate attorney G. Richard Strafer. “Criminal defense lawyers doing appeals should carefully consider whether to seek to disqualify Judge Pryor if he’s on their appeal.” Chief Judge J.L. Edmondson said Friday that he faxed a response letter to Kennedy last week. Both Edmondson and Kennedy’s office declined to make the letter public. “It was very much an appreciation and an acknowledgement of receipt,” said Kennedy spokesman David Smith. “The chief judge didn’t address any of the points Sen. Kennedy raised.” Pryor, 41, was one of a half-dozen White House appeals court nominees who were blocked from confirmation votes last year by filibusters and other delaying tactics by Senate Democrats, who called the nominees extreme in their conservative views. Pryor is an outspoken foe of the Roe v. Wade decision legalizing abortion, an opponent of decriminalizing homosexual sex, and a past supporter of displaying the Ten Commandments in public buildings. On Feb. 20, citing the Democrats’ “unprecedented obstructionist tactics,” President Bush announced that he had “exercised [his] constitutional authority” to appoint Pryor to a empty seat “that has been designated a judicial emergency.” Pryor was sworn in the same day by Judge Ed Carnes, a fellow Alabamian. “Judge Pryor has not heard any cases, or participated in any cases yet,” Edmondson said. “I don’t think anybody should read anything one way or the other into that fact.” Routinely, he said, new judges are preoccupied their first few weeks with hiring staff and getting their offices up and running. Pryor was the president’s second recess appointment in five weeks. On Jan. 16, he installed the equally controversial Charles W. Pickering Sr. to a seat on the 5th Circuit in New Orleans. But it was Pryor’s recess appointment, on the last business day before the Senate took a five-day break, that prompted Sen. Kennedy’s letter. He put the 11th Circuit judges on notice that they “risk error” and possibly the invalidation of every case Pryor sits on if the Supreme Court later holds that he was appointed illegally. HOLIDAY APPOINTMENT Article II of the Constitution gives the president the power to appoint officers during a recess of the Senate: “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.” For Pryor, that means he is guaranteed a seat through 2005. If the Senate doesn’t confirm him by then, he’s out. Kennedy’s legal memo to the 11th Circuit judges zeroes in on the timing of Pryor’s appointment — over a holiday weekend — as particularly problematic. Such appointments should only be used during genuine recesses at the end of a term of Congress or between annual sessions, Kennedy said. “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’s memo said. “If a president can make a recess appointment during a brief intra-session holiday break, with no new problem or urgency attributable to that break, there is nothing to prevent a president from doing so whenever the Senate recesses overnight or on a weekend,” Kennedy wrote. “Such a radical interpretation of a narrow power would nullify the Framers’ decision that the Senate and the Executive must share the appointment power.” The memo also observed that intra-session appointments of any kind for federal appeals and district court judges were “exceedingly rare.” “There have been none since 1954, until now,” it said. The memo goes on to argue that even if the Constitution allows some intra-session appointments, the circumstances of Pryor’s appointment were “such an affront” to the Senate’s role of advice and consent that President Bush acted outside the scope of his recess appointment authority. In part, the memo argued, that’s because there was no new problem or urgency requiring such action by the president. Eleven active judges and six senior judges serve on the 11th Circuit, and the vacancy has existed since December 2000, when Judge Emmett Ripley Cox took senior status. The Constitution gives federal judges confirmed by the Senate lifetime jobs and protection from pay cuts in order to preserve their independence. If Pryor is allowed to sit, Kennedy argued, judicial independence that “is the essence of justice” would be “seriously compromised. . . . That vital goal cannot be achieved if judges of an Article III court must serve with both the Congress and the president actively looking over their shoulders,” his memo said. In an upcoming article in the legal journal Constitutional Commentary, Emory University law professor William T. Mayton cites a 1986 U.S. Supreme Court decision, CFTC v. Schor, which stated everyone has a right to “have claims decided before judges who are free from potential domination by other branches of government.” But since recess appointees are still under the scrutiny of senators, Mayton argues that litigants who come before recess-appointed judges are being denied this basic right. As a result, he added, “Each and every judgment that includes a recess appointee stands to be overturned.” However, an article distributed by the Federalist Society, a conservative group with which Pryor has been heavily involved, points out that the few challenges to recess appointments have failed. This article originally appeared in the Miami Daily Business Review , a publication of American Lawyer Media.

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