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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.

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The Senate Judiciary Committee favorably reported his nomination to the full Senate in July 2003, but it stalled on the Senate floor under the Democratic filibuster.

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Fifty-three senators support Pryor, more than enough to approve the nomination, but he came up seven votes short of the 60 needed to break the filibuster. Republicans complain that the Constitution requires only 51 votes to approve a nominee, not the 60 necessary to break a filibuster.

At issue in the cases challenging Pryor's appointment is when the president is empowered to make recess appointments. The Bush administration says the Constitution permits the president to do it any time the Senate is not in session, including during intrasession breaks. But others say the power applies only during the Senate's annual adjournment (usually in December and early January).

The Supreme Court has never addressed the issue, but three appeals courts - including the 11th Circuit ruling 10-2 in Pryor's case - have adopted a broad reading of the recess appointment power, acknowledging the president's right to make appointments during both intersession and intrasession congressional breaks.

In addition to giving the president greater flexibility, the appeals courts' interpretation also grants the president the power to place recess appointees on the courts for close to two years.

The Constitution says recess appointees shall serve until the end of the next Senate session. That means for someone appointed during an intersession break (December-January) the appointee would serve during only one Senate session, potentially as long as one year. But if the president waits until the Senate is already in session before making a recess appointment, the appointee is entitled to serve until the end of the next Senate session - as long as two years.

Critics say such an outcome doesn't make sense. "Under this novel reading, the president may make a 'recess' appointment whenever the Senate takes any intrasession break, even for a period as short as a half-hour," writes Harvard Law School Professor Laurence Tribe in a friend of the court brief filed on behalf of Massachusetts Sen. Edward Kennedy.

In contrast, Brett McGurk, a Washington, D.C., appellate lawyer and a former law clerk of Chief Justice William Rehnquist, coauthored a study of the issue for the conservative Federalist Society. "The White House's legal position could not be much stronger," he says. "Three courts of appeal have all come out the same way, and I think the majority opinions are quite convincing."

Historical practice has been mixed. Recess appointments to the federal courts have been rarely used in recent years. Since the mid-1960s, presidents have appointed only four federal judges under the recess-appointment power. But there were 110 recess appointments to the federal bench between 1934 and 1964, by presidents of both parties. Of those, 12 were conducted like Pryor's during mid-session recesses. The remaining 98 were carried out after the formal adjournment of the Senate session and prior to the beginning of the next Senate session.