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President Bush’s recess appointment of Alabama Attorney General William H. Pryor Jr. to the 11th U.S. Circuit Court of Appeals last week stands in stark contrast to two other hard-fought court nominations. In 1992, Judge Edward E. Carnes, who administered the oath to Pryor on Feb. 20, survived opponents’ criticism of his management of Alabama’s capital punishment litigation to win a 62-36 Senate confirmation vote. Two years later, Judge Rosemary Barkett was confirmed 61-37 over objections that she was too liberal on the death penalty. The Senate votes ended the debates over Carnes and Barkett, but fighting over Pryor will continue. His outspoken views against abortion and in favor of states’ rights and a limited separation of church and state drew strong opposition from Democrats — enough that they mounted a filibuster that has kept Pryor’s nomination from a full Senate vote. Now that the president has used his power to make a temporary appointment while Congress is in recess, Pryor’s bid for a lifetime appointment will remain in play until the end of 2005. At that point, when the next session of Congress expires, Pryor will have to have been confirmed by the Senate or, unless reappointed, leave the bench. Repeated recess appointments are rare. Pryor’s reputation for candor — he’s called Roe v. Wade an “abomination” of constitutional law and once publicly asked God not to allow any more justices like the moderate David H. Souter — suggests he won’t worry how his rulings play to 100 U.S. senators looking over his shoulder. POLITICAL PRESSURE But ignoring senators’ views might not be easy, and a legal scholar suggests the political pressure Pryor might feel would make his rulings constitutionally suspect. In 1999, California federal Judge Richard Paez had been waiting more than three years for the Senate to vote on his nomination by President Clinton to the 9th Circuit when he sentenced former Democratic fund-raiser John Huang to a year’s probation for making illegal campaign contributions to a Los Angeles mayoral candidate. Noting that Huang had been linked to $1.6 million of foreign funds raised for the 1996 Clinton-Gore campaign, Sen. Jeff Sessions, R-Ala., called Paez’s acceptance of Huang’s plea agreement “stunning” and “very troubling.” Paez was eventually confirmed by a 59-39 vote. Emory University constitutional law professor William T. Mayton said that the framers of the U.S. Constitution presumed that political pressure could bias judges — a view proven by the document’s granting federal jurists lifetime appointments and a rule banning Congress from reducing judicial salaries. In an upcoming article in the legal journal Constitutional Commentary, Mayton cites a 1986 U.S. Supreme Court decision, CFTC v. Schor, 478 U.S. 833, that 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 adds, “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 greatly involved, points out that the few challenges to recess appointments have failed. The article, “Judicial Recess Appointments, A Summary of the Arguments,” notes the 1985 case of U.S. v. Woodley, 751 F.2d 1008. In that case, an en banc panel of the 9th Circuit voted 7-4 that because the Constitution expressly confers power on the president to “fill all vacancies during the recess of the Senate,” a criminal defendant could not challenge his conviction before a recess-appointed judge. 11TH CIRCUIT’S HOT-BUTTON CASES As the interpreter of federal law and the U.S. Constitution for Georgia, Florida and Alabama, the 11th Circuit regularly hears cases about some of the hottest legal issues affecting society. Last month a three-judge panel upheld a Florida law that bans homosexuals from adopting children. Panels are currently reviewing a race discrimination suit against Georgia Power and a free-speech challenge of an ordinance passed in the days before last year’s protest against the all-male membership of Augusta National Golf Club. While Pryor likely would have to recuse himself from cases involving the Alabama AG’s office, he will take part in the court’s other matters — including the en banc request stemming from the Florida adoption case. The panel in January wrote that the Supreme Court’s recent ruling that struck down laws banning gay sex did not apply to Florida’s adoption rule. Last year, Pryor submitted a brief for Alabama asking the high court to uphold states’ rights to ban gay sex. EFFECTS OF PENDING NOMINATION Chief Judge J.L. Edmondson of the 11th Circuit said it will take some time for Pryor to organize his judicial staff and chambers, which Edmondson said might be located in Birmingham. Asked whether Pryor’s pending Senate nomination would affect his decisions, Edmondson said, “I have no such concerns.” Pryor could not be reached to discuss the issue of political pressure and his approach to deciding cases. Washington litigator Charles J. Cooper, a friend of Pryor’s, said the new judge will not tailor his rulings to curry favor with senators considering his pending nomination. “It will not be measured, edited or altered to conform to some political imperative,” said Cooper. A Democratic lawyer who practices before the 11th Circuit offered a practical reason Pryor would not use his cases to try to establish himself as someone the Democrats would accept. “That would be mission impossible,” the lawyer said. “Instead, I think he will render decisions that are consistent with his core beliefs.” WILLING TO COMPROMISE? Another Democratic practitioner before the 11th Circuit wasn’t so sure what Pryor will do. Until this summer, the lawyer said he would have expected Pryor to continue making decisions adhering to his unabashed conservatism. But Pryor’s prosecution of former Alabama Chief Justice Roy S. Moore gave the lawyer a new view of Pryor. Moore had refused to obey a federal court decision ordering him to remove a Ten Commandments monument from the state judicial building. Pointing out that Pryor was a longtime supporter of Moore’s position that it was constitutional to display the Ten Commandments in government buildings, the lawyer said Pryor’s prosecution of Moore “may indicate a willingness to compromise.” Pryor explained in press statements that he continued to believe the Ten Commandments could be displayed as they are in the U.S. Supreme Court building, but that court orders must be obeyed. Phillip L. Jauregui Jr., an attorney for Moore, issued a statement decrying Pryor’s appointment to the 11th Circuit. “When Pryor testified before the Senate Judiciary Committee he indicated that the Supreme Court’s abortion ruling, Roe v. Wade, was a constitutional abomination, had resulted in the murder of millions of babies, but that if Pryor became a federal judge he would allow it to continue,” Jauregui’s statement said. “Essentially Pryor’s judicial philosophy is one of judicial imperialism whereby he places the opinions of judges over the Constitution and even over the God whom the Declaration of Independence says gave us life. Isn’t this the type of activist philosophy that the President opposes?” the statement continued. Bush’s announcement last week that he was putting Pryor on the bench said Pryor’s “impressive record demonstrates his devotion to the rule of law and to treating all people equally under the law.”

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