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Court sidesteps Bush recess appointment of Bill Pryor

By Hope Yen
Associated Press Writer

WASHINGTON — The Supreme Court, dodging a charged dispute over judicial nominations, declined Monday to consider whether President Bush overstepped his bounds in naming a federal judge in Alabama while Congress was on a short break.

The court refused to hear a trio of cases challenging the "recess appointment" of then-Attorney General William Pryor of Alabama to the Atlanta-based 11th U.S. Circuit Court of Appeals last year. The appeals argued that Pryor's temporary appointment was an end-run around the Senate's right to confirm or reject judicial nominees.

The justices' move avoids a contentious issue on the eve of a widely speculated vacancy on the court. If they had intervened, it would have set up a constitutional showdown over White House powers at a time when ailing Chief Justice William H. Rehnquist is considered a strong prospect to step down this term.

The Constitution gives presidents authority to fill vacancies for a year or two during a Senate "recess." At issue was whether a "recess" means whenever the Senate is not meeting, such as during short intra-session breaks, or only during the Senate's annual adjournment at year's end.

In a statement accompanying the cert denial, Justice John Paul Stevens emphasized the court did not necessarily reject the case because the appeal lacked merit. He suggested justices might be interested in hearing the case later when the appeals have run their full course in the 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.

Earlier this month, Bush renominated Pryor, whose term is scheduled to expire at the end of the year, for a lifetime appointment on the 11th Circuit.

"The president asserts the power to make 'recess appointments' of judges during any break of the Senate — including, literally, even a break for lunch," wrote Thomas Goldstein, a Washington attorney representing Sen. Edward Kennedy, D-Mass., in the cases.

"That unprecedented conception of the recess appointments power obviously vitiates the cardinal authority of the Senate to pass on the president's nominees," he stated.

Bush administration lawyer Paul Clement countered that it has been long-standing practice for presidents of both parties to make recess appointments, including 12 Supreme Court justices, anytime 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,' " Clement wrote, noting that intra-session recesses often are one month or more.

Bush named Pryor to the 11th Circuit during a Presidents' Day recess last February, after the Senate refused twice to bring his nomination to a floor vote. The 11th Circuit serves Alabama, Florida and Georgia.

His nomination had languished in 2003 as abortion rights advocates fought Pryor over his criticism of the Supreme Court's Roe v. Wade decision that legalized abortion. Pryor also was lambasted for filing a Supreme Court brief that compared homosexual acts to incest and pedophilia.

Kennedy and other Democrats said the recess appointment during the 11-day break was improper, arguing that Congress would have to meet every day to avoid presidential power grabs. But Pryor's colleagues on the 11th Circuit ruled 10-2 last fall that it was constitutional.

Copyright 2005 Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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