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Battle over recess appointments

High court may rule on the legality of President Bush's use of the controversial tactic to fill judicial vacancies.

By Staff writer of The Christian Science Monitor / December 27, 2004

In the looming battle over President Bush's judicial nominations, much has been said about using the so-called nuclear option to by-pass Democratic filibusters.

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But the president has an alternative weapon, one that empowers him to place conservative nominees on the bench immediately, regardless of efforts by Senate opponents. Mr. Bush could simply use his authority to make recess appointments to fill judicial vacancies - including, if necessary, at the US Supreme Court.

It's a tactic that some legal analysts say is appropriate when a minority of senators attempts to use a filibuster to block an up or down Senate vote on a nominee. Others say the move amounts to an unconstitutional power grab by the White House by circumventing the Senate's "advice and consent" role in judicial nominations.

Now, on the eve of an anticipated no-holds-barred showdown over the future composition of America's courts, the US Supreme Court is being asked to determine what limits, if any, apply to the president's recess appointment power. The court is considering taking up four different cases, each challenging Bush's recess appointment last February of William Pryor to a federal appeals court in Atlanta. A decision by the court on whether to hear the issue could come as early as January.

Opponents of the president's efforts to install conservative judges say the case could prove critical. "At this rare moment in history, the rightwing of the Republican Party controls the House, the Senate, the White House, and is very close to controlling the Supreme Court," says Ralph Neas, president of the liberal advocacy group People for the American Way. "There are only three checks and balances [left] in the federal system: the filibuster, Sandra Day O'Connor, and Anthony Kennedy."

The recess-appointment issue is important because it is expected to set the stage for the battle between Senate Democrats and the White House over judicial nominations in general and Supreme Court vacancies in particular. If Democratic senators seek to filibuster a Supreme Court nominee, some analysts suggest the White House could respond by placing the nominee immediately on the high court - for up to two years - through a recess appointment.

A similar confrontation is already playing out over Bush's nominees to appeals court posts. Ten nominees have been filibustered by the Democratic minority in the Senate. Republican Senate leaders have been unable to muster the 60 votes necessary to break the filibusters.

Bush responded to the Democrats' "obstructionist" tactics with recess appointments for Mr. Pryor, and for Charles Pickering, a federal judge in Mississippi who was named in January to fill a seat on the Fifth US Circuit Court of Appeals based in New Orleans. Mr. Pickering's appointment ended earlier this month at the end of the Senate's 2004 session, and he announced his retirement.

Pryor, a former Alabama attorney general, was nominated for a seat on the 11th US Circuit Court of Appeals in April 2003.