Court declines to intervene on judicial appointment that bypassed Senate

Judicial appointments made by Bush during congressional recess are controversial, but in this case the Supreme Court lets the practice stand.

The US Supreme Court has sidestepped a brewing street brawl between Senate Democrats and the White House over the future composition of the federal judiciary - and potentially of the high court itself.

On Monday the justices declined to take up three cases challenging President Bush's recess appointment last year of William Pryor to fill a federal appeals court vacancy in the face of a Democratic filibuster of the nomination. The announcement came as Chief Justice William Rehnquist returned to the court to preside over oral arguments after having missed several months during cancer treatments. The chief justice's illness has fueled speculation that he may retire soon.

The recess appointment cases were significant because they were seen as a possible test of whether Mr. Bush would be free to use the authority to bypass attempts by Senate Democrats to stall judicial nominations indefinitely - including at the high court.

In an two-page explanation of the court's refusal to take up one of the recess appointment cases, Justice John Paul Stevens cautioned court-watchers - and by extension the White House - against reading its denial to hear the case as a constitutional green light for similar recess appointments in the future. No other justices joined Stevens in a statement on the issue. So it remains unclear how the justices might line up should the court decide to rule on the constitutional issue later.

By declining to take up a case challenging Mr. Pryor's February 2004 recess appointment to the federal appeals court in Atlanta, the justices have let stand an 8-2 decision upholding a broad interpretation of the president's authority. Sen. Edward Kennedy (D) of Massachusetts and others argued in court papers that the Constitution's recess appointment power should be construed narrowly to forbid the president from making appointments such as Mr. Pryor's.

At issue is whether the Constitution stipulates that the president may make recess appointments only during the Senate's annual December-January adjournment, which marks the end of a congressional session. The Bush administration says the Constitution permits the president to make recess appointments any time the Senate is not in session for more than three days.

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 process. But there were 94 recess appointments to the federal bench between 1946 and 1964. Of those, 12 were conducted during mid-session recesses. The remaining 82 were carried out after the formal adjournment of the Senate session.

At issue in the Pryor case was whether his recess appointment was proper since it was carried out during a 10-day Senate break. His appointment was also challenged on grounds that his temporary appointment to the federal bench violated constitutional requirements that federal judges serve lifetime tenure to maintain independence from the political branches.

Since his appointment, Pryor has participated in hundreds of cases. If he had been removed, the outcome in many of those cases would be in doubt.

The 11th US Circuit Court of Appeals ruled in mid-October that the president could make recess appointments during any Senate recess longer than a few days.

The latest action sets the stage for what many analysts expect will become a divisive 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 high court nominee, some suggest the White House could respond by turning to a recess appointment. Under the US Constitution, the recess appointee would be entitled to serve until the end of the Senate's next session - as long as two years.

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