- The Washington Times - Tuesday, February 24, 2004

Last Friday, President Bush announced the recess appointment of Alabama Attorney General William H. Pryor to the 11th Circuit Court of Appeals. This is Mr. Bush’s second recess appointment to a judgeship in two months, and only the third such appointment by a president since 1980. Considering that the highly qualified Judge Pryor had no chance of beating a Democratic filibuster, we are happy to see the president make this rare but necessary move. After resigning his position as Alabama attorney general on Friday, Judge Pryor called the moment “bittersweet.” We would have to agree.

Of course Judge Pryor’s opponents wasted no time attacking the president’s recess appointment as controversial and divisive. As with the rest of Judge Pryor’s confirmation battle, these charges are inaccurate and unfair. The judge’s qualifications have been proven time and again, and there is little reason to recite them here. Not only would Judge Pryor win an up or down vote on the Senate floor, but he is simply not the religious ideologue his critics make him out to be. He proved this again just recently in the Judge Roy Moore case that involved displaying the Ten Commandments on government property in Alabama. As if to highlight the strained nature of this criticism, Democrats attacked Judge Pryor’s decision to forgo visiting Disney World during the theme park’s “Gay Days.” Somehow a family vacation makes him unfit for the appellate seat.

Nor do we think Mr. Bush’s recess appointment a “flagrant abuse of presidential power,” as Sen. Ted Kennedy said. Recess appointments are rare and should be used only in cases of judicial emergency. The Administrative Office of U.S. Courts listed the vacancy in the 11th Circuit that Judge Pryor has just filled as a judicial emergency, since the seat had been vacant since December 2000 and the number of weighted filings exceeded 600. Far from displaying any contempt for the confirmation process, Mr. Bush met a purely partisan Democratic opposition with prudent execution.

In a perfect world, however, we would have preferred a Senate confirmation. Judge Pryor will spend the next two years under the shadow of a truncated tenure. The reality, of course, is that the judicial nomination process has been heading down a destructive path for quite some time. The recently leaked memos from Democratic computer files proved, if nothing else, that obstruction has been the goal all along. For whatever reason, the six filibustered nominees were never going to get a fair shake.

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