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ATLANTA — While senators in Washington, D.C., enjoyed a judicial nominations truce on Wednesday, the fight escalated in Atlanta, as the Sierra Club asked the Eleventh Circuit U.S. Court of Appeals to disqualify Judge William Pryor Jr. from hearing a case. The San Francisco-based Sierra Club filed a 43-page motion with the court arguing that President Bush’s February recess appointment of Pryor violated the U.S. Constitution. Bush’s use of his power to place judges on courts when the Senate is in recess bypassed the confirmation process and infuriated Democrats. They had blocked a vote on Pryor, the former Alabama attorney general, because they opposed his views against abortion, in favor of states’ rights and for a limited separation of church and state. The Pryor recess appointment led Democrats to block votes on 25 largely uncontested Bush judicial picks for two months — until a deal brokered on Wednesday resolved the issue. According to news reports, Democrats agreed to lift their block on confirmations if Bush agreed not to use his recess appointment power for the rest of his term, which ends in January. But the Pryor appointment is still being fought over in the Eleventh Circuit, which covers Georgia, Florida and Alabama. The Sierra Club motion echoed arguments made by one of Pryor’s fiercest critics, Sen. Edward Kennedy, D-Mass., and Emory University constitutional law professor William Mayton. Mayton said in February that the framers of the Constitution presumed that political pressure could bias judges — a view proved by the document’s granting of federal jurists lifetime appointments and a rule banning Congress from reducing judicial salaries. In an article in the legal journal Constitutional Commentary, Mayton cited a 1986 U.S. Supreme Court decision, CFTC v. Schor, 478 U.S. 833, that states everyone has a right to “have claims decided before judges who are free from potential domination by other branches of government.” Mayton argued that litigants who come before recess-appointed judges are being denied this basic right because recess appointees are still under the scrutiny of senators, who control whether they will ever get lifetime appointments. Bush’s appointment of Pryor, the Sierra Club argued in its brief, “is inconsistent with the constitutional guarantees of an independent judiciary.” The brief was filed by Curtis Cox of the Georgia Center for Law in the Public Interest and William Schultz of Zuckerman Spaeder in Washington, D.C. The motion came in a Sierra Club appeal of decisions by the Environmental Protection Agency regarding the Clean Air Act, Sierra Club and Georgia Forrestwatch v. Leavitt, 03-10262-F. Joshua Levin, a lawyer for the Justice Department in the case, could not be reached. Asked about the motion, Bradford Berenson, a former associate White House counsel for Bush, said, “Since the founding of the Republic, presidents have recess-appointed numerous federal judges, including justices of the Supreme Court. “Whatever one thinks of the practice, any claim that it is unconstitutional is frivolous,” added Berenson, now with Sidley Austin Brown & Wood. “This [motion] appears to be designed to obtain publicity rather than judicial relief.” Jonathan Ringel is a reporter with the Fulton County Daily Report , a Recorder affiliate based in Atlanta.

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