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.
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.
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.
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.