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The 11th U.S. Circuit Court of Appeals on Thursday rejected an attempt by Sen. Edward M. Kennedy to keep Judge William H. Pryor Jr. from participating in cases that will be argued before the full court next week. Chief Judge J.L. Edmondson ended a 24-hour flurry of legal maneuvering with a three-paragraph order for the court, declaring that the Massachusetts Democrat’s argument — that President Bush unconstitutionally placed Pryor on the court — arrived too late for the court to consider. The deadline to file friend-of-the-court briefs for the June 15 en banc session was April 28, wrote Edmondson. The dry decision on procedure did not hide the strong political emotions that surround Pryor, whose outspoken opinions against abortion, Congressional power over the states and a high wall separating church and state had made his nomination one of the most contentious in recent history. “This is obstruction,” said Sen. Jeff Sessions, R-Ala., Pryor’s chief sponsor in the Senate. “Bill Pryor is one of the finest nominees before this Congress.” “Sooner or later, the 11th Circuit or the Supreme Court will have to decide the issue,” Kennedy said in a press statement. Kennedy’s motion was the third try Pryor’s opponents have made to knock him off the bench. The 11th Circuit recently declared moot a similar argument in U.S. v. Blackwood, No. 03-14958-F, Kennedy wrote. And last month the Sierra Club and Georgia Forestwatch filed a brief asking for Pryor to be disqualified from their Clean Air Act cases because, they argued, he was invalidly on the court. That motion is pending. Bush’s February appointment allows Pryor, whose nomination to a lifetime appointment failed when Democrats blocked the Senate from holding a confirmation vote, to serve on the 11th Circuit until the end of 2005. KENNEDY’S REASONING Kennedy, one of Pryor’s fiercest opponents, told the 11th Circuit that Pryor’s appointment was invalid because it occurred during a 10-day Senate recess. Article II of the Constitution gives presidents the power to “fill up all Vacancies that may happen during the Recess of the Senate,” but Kennedy argued that the Framers referred only to a recess between sessions of Congress. Pryor’s appointment occurred during a holiday break early in the second session of the 108th Congress. “If the current appointment is upheld, this Court will be ruling that a recess appointment made after the Senate adjourns on any Friday would be valid even if the Senate is only in recess for the weekend, and the advice-and-consent function of the Senate would be a dead letter,” Kennedy concluded. Kennedy, who graduated from the University of Virginia School of Law three years before his 1962 election to the Senate, filed the brief pro se but listed Harvard University Professor Laurence H. Tribe, former federal judge William A. Norris and Supreme Court experts Thomas C. Goldstein and Edward P. Lazarus, among others, as of counsel. Kennedy’s motion came in three cases set to be argued before the 11th Circuit — an immigration case, Adefemi v. Ashcroft, No. 00-15783; a civil forfeiture case, U.S. v. Stanford, No. 01-16485; and a criminal matter involving interstate commerce, U.S. v. Drury, No. 02-12924. JUSTICE LAWYERS FIGHT BACK Peter D. Keisler, Gregory G. Katsas and Douglas N. Letter of the U.S. Department of Justice filed an immediate response. They cited seven judges who, since 1867, were appointed during intrasession Senate recesses. “Thus, there is ample authority for the president’s appointment of Judge Pryor,” they added. They also argued that Kennedy’s brief was very late “and to permit him to inject new issues into this case now, on the eve of oral argument, would be unfair both to the Court and to the parties.” The Justice Department lawyers pointed out that no party in the three cases had sought to challenge Pryor’s appointment, arguing that courts rarely consider issues raised only in amicus briefs. In response, Kennedy said his argument was not new to the court, reminding the judges of a letter he sent in March making a similar case against Pryor’s appointment. He added that the court should decide Pryor’s constitutionality promptly “because Judge Pryor continues to serve on an ever-increasing number of cases which may be tainted.” Pryor and Judge Edward E. Carnes, who performed Pryor’s swearing-in ceremony, recused themselves from the decision.

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