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Judge William H. Pryor Jr. sits lawfully on the 11th U.S. Circuit Court of Appeals, eight of 10 members of the Atlanta-based court ruled on Thursday. The decision answered an awkward question posed by litigants in an upcoming 11th Circuit case and Sen. Edward M. Kennedy, D-Mass., a vocal opponent of Pryor’s nomination for a lifetime seat on the court. Kennedy and lawyers for plaintiffs in a case set to be argued later this month claimed that President Bush’s use of his powers to appoint judges during congressional recesses — without the usual consent of the Senate — was unconstitutional in Pryor’s case. Bush tapped Pryor in February, bypassing the Senate, which was deadlocked between Republicans and Democrats as to whether to grant Pryor’s nomination a vote. Noting that more than 300 recess appointments to the courts have occurred since George Washington was president, Judge J.L. Edmondson wrote, “We are not persuaded that the President acted beyond his authority in this case.” He was joined by Judges Gerald B. Tjoflat, R. Lanier Anderson III, Stanley F. Birch Jr., Joel F. Dubina, Susan H. Black, Frank M. Hull and Stanley Marcus. Judge Rosemary Barkett dissented, arguing that “the majority’s conclusions conflict with the words of the Constitution, the purpose of the Recess Appointments Clause, and the structural principles underlying the Constitution’s delicate balance of power between the executive and legislative branches of government… .” Barkett added that it was “difficult for any of us to sit in judgment on the constitutionality of a colleague’s appointment” and that she would have preferred the court send the question to the Supreme Court. Judge Charles R. Wilson dissented, but only because he thought the judges should not have decided the case on the merits but, as Barkett preferred, sent the problem directly to the high court. “Imagine the risk to our collegiality,” Wilson wrote, if the court had ruled that Pryor’s appointment was unlawful. Noting that Pryor already has authored eight published opinions and participated in 299 appeals, Wilson added, “Any decision we make on this motion risks undermining public confidence in the Court.” Neither Pryor, nor Judge Edward E. Carnes, who presided over Pryor’s swearing-in, participated in the decision. Kennedy released a statement saying he disagreed with the decision but was “pleased, however, to see that all the judges on the Circuit agree that this important question is ready for the Supreme Court to resolve now, and I’m hopeful that the Justices will agree to do so.” Lawyers for the U.S. Department of Justice, which intervened to defend Bush’s authority, or for the parties in the case in which the recess appointment was debated could not be reached to discuss the decision. Evans v. Stephens, No. 02-16424 (11th Cir. Oct. 14, 2004). Pryor’s 2003 nomination to the 11th Circuit became one of the most contentious in recent history. Most Democrats opposed the nomination because of the former Alabama attorney general’s outspoken view against abortion, his initial support of a Ten Commandments monument in the Alabama judicial building, and his arguments against Congress’ power over the states. A Senate majority was prepared to confirm Pryor, but enough Democrats opposed him that they successfully filibustered to block every effort to end debate and hold a full Senate vote. It takes 41 of the Senate’s 100 members to mount a filibuster. The recess appointment allows Pryor to stay on the bench until the end of 2005, if the Senate does not confirm him by then. Kennedy had 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. Barkett was the only judge to accept Kennedy’s argument, writing that “the majority’s interpretation gives a President the ability to appoint someone without regard to whether the Senate has in fact been available to consider that nominee. “All that a President need worry about,” she added, “is (1) whether the Senate is in town and (2) whether there is a vacancy in a federal office.” Edmondson and the majority found, however, that the challengers had not proven their point: “Just to show that plausible interpretations of the pertinent constitutional clause exist other than that advanced by the President is not enough.”

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