- The Washington Times - Tuesday, March 9, 2004

Republicans have accused Democrats of reaching “absurd” new lengths to block President Bush’s judicial nominees.

The accusations were prompted by a letter this week from Sen. Edward M. Kennedy, Massachusetts Democrat, to the 11th Circuit U.S. Court of Appeals asking the panel to consider whether Mr. Bush’s recent appointment of its latest member was unconstitutional.

Mr. Bush bypassed the Senate last month and installed former Alabama Attorney General William H. Pryor Jr. to the panel 10 months after first nominating him. Mr. Bush took the unusual step after Mr. Pryor became one of six nominees targeted for filibusters by a group of 45 unyielding Democrats.

“I am writing to suggest respectfully that a serious question exists as to whether Judge Pryor’s recess appointment is constitutional,” Mr. Kennedy wrote in a letter this week to the entire 11th Circuit appellate bench, the Atlanta-based court that hears federal cases appealed in Georgia, Alabama and Florida.

But Republicans and their supporters say it’s just a new way to block the nominee.

“Senator Kennedy is so desperate to obstruct President Bush’s nominees that he will go to any lengths, no matter how absurd, to stop them, even when they’ve already joined the bench,” said Jeffrey Mazella, executive director of the Center for Individual Freedom. “The president appropriately exercised his constitutional authority to appoint Judge Pryor only after Senator Kennedy and his liberal allies unfairly blocked Senate consideration of his nomination.”

The so-called “recess appointment” — which Mr. Bush also used in January to install Judge Charles W. Pickering Sr. of Mississippi to the 5th Circuit U.S. Court of Appeals — allows the president to make temporary appointments to fill vacancies on the bench without getting approval from the Senate. Judge Pryor’s recess appointment came during the weeklong holiday surrounding Presidents Day.

The power to make recess appointments is spelled out in the Constitution, directly following guidelines for the normal judicial-nomination process.

“The president shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session,” the Constitution reads.

According to Mr. Kennedy, “The language and purpose of the recess appointment clause strongly suggest that the recess appointment power may be used only during the recess at the end of a Congress or the recess between the annual sessions of Congress, not during an intrasession recess and almost certainly not during the very brief recess in which Mr. Pryor was appointed on Friday, February 20, 2004, since Congress returned to session the following Monday.”

But Republicans unearthed examples of Democratic presidents making recess appointments during similarly short recesses.

The office of Sen. John Cornyn, Texas Republican, found a 1993 legal opinion written by President Clinton’s attorney general, Janet Reno, in which she argued that a recess appointment is justified for any break in excess of three days. Also, in 1999, Mr. Clinton appointed James Hormel ambassador to Luxembourg during a 10-day recess around Memorial Day.

“One need not tread back far in history to find an opposing view to the opinion expressed in Sen. Kennedy’s letter,” Mr. Cornyn said. “In fact, the Clinton administration took the position in 1993 that a presidential recess appointment could be justified in recesses as short as a few days.

“A change of heart is not surprising, though. In fact, it’s become a pattern,” he added. “During the Clinton administration, Democrats condemned judicial filibusters, but now support them. During the Clinton administration, recess appointments were just fine. Now, they’re unconstitutional.”

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