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The Supreme Court declined on Monday to wade into the controversial question of whether it was constitutional for President George W. Bush to appoint William Pryor Jr. to the 11th U.S. Circuit Court of Appeals during a brief Senate recess last year. The Court denied review in three cases in which litigants challenged the propriety of Pryor’s sitting in review of their cases. They claimed that while the Constitution empowers the president to make appointments during recesses between sessions of Congress, the power does not extend to brief breaks during a session. Acting Solicitor General Paul Clement responded in the cases that recess appointments have a long history — including 12 Supreme Court appointments — and that there was no constitutional distinction between intersession recesses and briefer ones during sessions. Bush made the recess appointment of Pryor during a President’s Day recess in 2004 after Senate Democrats had blocked floor votes on his nomination. Pryor’s recess appointment is temporary and will keep him on the bench until the end of 2005. Last month, the president renominated him for a permanent seat on the Atlanta-based court. The Court’s denial of review came without comment Monday, though Justice John Paul Stevens wrote a statement in one of the cases, Evans v. Stephens, to caution that the Court’s action did not amount to a decision on the merits. “It would be a mistake to assume that our disposition of this petition constitutes a decision on the merits of whether the President has the constitutional authority to fill future Article III vacancies, such as vacancies on this Court, with appointments made absent consent of the Senate during short intra-session ‘recesses,’” Stevens wrote. Stevens agreed that there were “legitimate prudential reasons for denying review,” including the fact that the litigants were seeking review of an interlocutory order. Stevens appeared to leave the door open to the possibility that another case challenging Pryor’s appointment might win review if it is in a better procedural posture. Sen. Edward Kennedy, D-Mass., who filed amicus curiae briefs in the cases to support the challenge to Pryor’s legitimacy, picked up on that hint and said in a statement that Monday’s high court actions did not end the controversy. “I intend to keep raising this issue,” said Kennedy. “It’s essential for the White House and Senate Republicans to obey the rule of law on judicial nominations.” Kennedy also commended Stevens for “making clear that today’s action by the Supreme Court in no way supports the abuse of power by President Bush in bypassing the Senate on Mr. Pryor’s appointment to the Court of Appeals.” But supporters of Pryor were celebrating Monday’s action as a death knell for the controversy. “The Supreme Court acted properly in turning away these appeals in a matter where the president clearly exercised his constitutional authority in making a recess appointment to the federal judiciary,” said Jay Sekulow, chief counsel of the American Center for Law and Justice, in a statement. “We’re delighted the Supreme Court let stand a decision by the federal appeals court. President Bush took appropriate and constitutional action in naming Judge Pryor to a seat on the federal appeals court. … The decision by the Supreme Court not to take this case represents an important victory for the Constitution and the president who has the authority to make recess appointments to the federal judiciary.”

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