Supreme Court Won’t Rule on Bush Recess Pick of Pro-Life Judge

National   |   Steven Ertelt   |   Mar 21, 2005   |   9:00AM   |   WASHINGTON, DC

Supreme Court Won’t Rule on Bush Recess Pick of Pro-Life Judge

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by Steven Ertelt Editor
March 21, 2005

Washington, DC ( — The Supreme Court has declined to get involved in a dispute over whether President Bush overstepped his authority in naming a federal judge while Congress was on break.

The High Court refused to hear a trio of cases challenging the recess app’ointment of William Pryor to the 11th U.S. Circuit Court of Appeals in Atlanta last year. Appellants had argued that the temporary appointment was an attempt to circumvent the Senate’s right to confirm or reject judicial nominees.

The Constitution permits the President to fill vacancies for a year or two during a Senate recess.

The controversy centered on whether a recess occurs whenever the Senate is not meeting or whether it refers to the Senate’s adjournment at the end of the year.

If the Supreme Court had weighed in on the issue, there could have been a constitutional showdown at a time when new vacancies could open up on the court.

In a written statement, Justice John Paul Stevens said the court did not reject the case because the appeal lacked merit. Instead, he said justices might hear the case once the appeals have been heard in lower courts.

"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 (judicial) vacancies, such as vacancies on this court," Stevens wrote.

This month, the President re-nominated Pryor for a lifetime appointment on the 11th Circuit.

The Bush Administration had argued that presidents of both parties have been known to make recess appointments whenever the Senate is not meeting.

"A recess appointment power that could be freely invoked during a one-day inter-session recess, but would be categorically barred during a three-month intra-session recess, would be ‘irrational,’" Paul Clement, a Bush Administration lawyer, wrote.

The President named Pryor to the 11th Circuit during a President’s Day recess after the Senate twice refused to bring his nomination to a vote.

Pro-abortion activists fought Pryor’s nomination because of his criticism of Roe v. Wade, the Supreme Court ruling which legalized abortion.

Pryor told a Senate panel, "I believe that not only is [Roe] unsupported by the text and structure of the Constitution, but it has led to a morally wrong result. It has led to the slaughter of millions of innocent unborn children."

Senator Ted Kennedy, of Massachusetts, and other Democrats argued the recess appointment was improper. However, the 11th Circuit ruled 10-2 last year that it was constitutional.

"We are not persuaded that the president acted beyond his authority in this case: both the words of the Constitution and the history of the nation support the president’s authority," wrote Chief Judge J. L. Edmondson.

If the Supreme Court had accepted the appeal, dozens of criminal and civil cases in which Pryor had participated might have been in jeopardy.

Bush also used a recess appointment to install Charles Pickering of Mississippi to an appeals court–another nominee who had been blocked by pro-abortion Senate Democrats.