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The controversy over President George W. Bush’s recess appointment of William Pryor Jr. to the U.S. Court of Appeals for the 11th Circuit is heading to the Supreme Court. A case that challenges Pryor’s authority because of the recess appointment, Shannon Miller v. United States, No. 04-38, is one of dozens the Court is expected to discuss in private conference Oct. 28, with an eye toward granting or denying review. Article II of the Constitution gives the president power to “fill up all Vacancies that may happen during the Recess of the Senate.” But the question before the Court is whether that power is limited to the once-lengthy recesses between sessions of Congress, or extends to the routine, brief “intra-session” recesses of the kind that Bush used to appoint Pryor. The 11th Circuit on Oct. 14 rejected a similar constitutional challenge to Pryor in a separate case, but Miller, in which the 11th Circuit did not rule on the issue, is further along in the appeals process and could be acted on first. Senate Democrats blocked Pryor’s confirmation with a filibuster in 2003. Bush responded by appointing Pryor on Feb. 20 this year during the Senate’s 10-day Presidents Day recess. The appointment does not need to be confirmed and lasts until the end of 2005�unless the Senate acts to confirm him for life tenure by then. Lawyers for Miller, a Florida drug defendant, claim that because Pryor was appointed without Senate confirmation during an “intra-session” recess, it was a “plain defect” for Pryor to rule on his appeal as one of three judges on a circuit panel. Miller’s counsel is William Schultz of D.C.’s Zuckerman Spaeder. The case rose out of Miller’s 2002 motion to overturn his 1994 sentence in the Southern District of Florida on a conviction of one count of possession of cocaine with the intent to distribute it. His appeal, claiming ineffective assistance of counsel and due process violations, was denied by the District Court. After filing briefs with the 11th Circuit, the appeal was assigned to Judges Joel Dubina, Stanley Marcus, and William Pryor, though Schultz says the composition of the panel was not known until it issued its unpublished ruling in April. The panel denied the appeal. Schultz then asked the Supreme Court to review the recess appointment issue, even though it was not ruled on in the context of Miller’s case. “The benefits of waiting for a lower court decision are far outweighed by the costs,” he said, arguing that if he wins, the ruling of every panel on which Pryor has sat could be questioned. Schultz argues that the singular phrase “the recess” in the Constitution clearly refers only to the one recess between Senate sessions. Intra-session recesses resulted from changes in travel that allowed members of Congress to frequently travel back to their constituencies. Schultz also questions whether the recess power should apply to Article III judges at all, noting that recess appointees lack the Senate confirmation, life tenure, and judicial independence that the framers of the Constitution wanted judges to have. “The text of the Constitution and the records of the Constitutional Convention demonstrate that the Framers intended Senate confirmation of presidential appointments to be an important check on Presidential power,” Schultz wrote. “The Framers included these protections to insulate federal judges from political pressures that might compromise the rights of individual litigants.” NOT RIPE In his brief for the government, Acting Solicitor General Paul Clement says the issue is not ripe for high court review in Miller’s case because it was not ruled on by the 11th Circuit. Miller should have reapplied to the appeals court for review on the recess issue rather than heading to the Supreme Court, Clement argues. The government brief also cites a 1921 opinion by Attorney General Harry Daugherty supporting the practice of intra-session recess appointments. “Although historical records are incomplete, at least 12 different presidents have made at least 285 intra-session recess appointments since 1867, including the appointment of at least 14 Article III judges,” Clement wrote. Twelve past Supreme Court justices were appointed during recesses, including Chief Justice Earl Warren and Justices William Brennan Jr. and Potter Stewart. Schultz counters in his reply brief that Daugherty’s opinion specifically states that the recess power would not extend to a “5 or even 10″ day recess, making it “an opinion that�at best�would place Judge Pryor’s recess appointment in serious jeopardy.” Sen. Edward Kennedy (D-Mass.) filed an amicus curiae brief on Miller’s behalf, arguing that a larger issue is at stake than just Pryor’s appointment “The party affiliations of the proponents and opponents of this particular recess appointment cannot obscure the fact that the competing claims to authority under the Constitution relate to the powers of the president and the Senate, not Republicans and Democrats,” wrote Harvard Law School professor Laurence Tribe on Kennedy’s behalf. Tribe also argued that Pryor’s status should be determined as soon as possible. “With each passing month Judge Pryor participates in an expanding body of decisions,” Tribe wrote. “The appointment of a judge to an Article III Court�a position uniquely demanding independence under the Constitution�during a brief intra-session Senate adjournment presents the most extreme invocation of the President’s power to make a recess appointment,” added Tribe. The 11th Circuit ruled en banc on the recess issue in Evans v. Stephens, with recusals from Judges Pryor and Edward Carnes, who presided over Pryor’s swearing-in. But the circuit has still not heard oral arguments in the underlying case in which the recess issue was raised. Schwartz’s petition, filed in June, anticipated the Evans ruling, but said the Court should take up Miller now. “Even if the 11th Circuit decides Evans within three months after the argument and one of the parties files a petition for certiorari, it is unlikely that this court could grant certiorari, allow time for briefing, hear arguments and issue a decision before early 2006, by which time more than 100 additional cases potentially could be jeopardized.” OTHER CASES UP FOR REVIEW •� Johnson v. Baker, No. 03-1661 (and related case No. 04-65.) Constitutionality of Ten Commandments display on Ohio public high school grounds. •� Connecticut Department of Social Services v. Ossen, No. 03-1672. State’s 11th Amendment immunity and the bankruptcy code. •� Martingale LLC v. Louisville, Ky., No. 04-60. Federal Anti-Injunction Act and state court action. •� Beard v. Holloway, No. 04-101. Evidence needed to prove discrimination in use of peremptory challenges under Batson v. Kentucky. •� Stumbo v. Anderson, No. 04-103, Constitutionality under First Amendment of Kentucky election law provisions, including ban on electioneering within 500 feet of polling place. •� Tate v. Kopec, No. 04-112. Police immunity for use of tight handcuffs. •� Lanham Ford Inc. v. Ford Motor Co., No. 04-247. Measuring amount in controversy for federal diversity jurisdiction. •� Castle Rock, Colo. v. Gonzales, No. 04-278. Police failure to enforce domestic abuse restraining order. •� Connecticut v. Spencer, No. 04-282. Protective sweeps by police and the Fourth Amendment. This column seeks to identify cases on the Supreme Court’s conference agenda that are leading candidates for Supreme Court review or that raise significant national issues. Thomas Goldstein of Washington, D.C.’s Goldstein & Howe selects these cases from the many petitions filed based on several factors, including whether lower courts have split on the issues presented. He does not otherwise participate in the preparation of this column. Goldstein & Howe is one of the law firms on the amicus brief filed by Sen. Edward Kennedy in Miller v. United States , No. 04-38.

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