The US 11th Circuit Court of Appeals has ruled that President Bush acted legally when he appointed William Pryor to the appeals court bench during a holiday recess of the Senate. MA Sen. Edward Kennedy challenged the appointment, arguing that it was simply an end-run around the Senate's power to confirm judicial nominees and that the president could not appoint nominees during an intrasession recess of the Senate. Pryor twice had a vote on his nomination blocked by Senate Democrats critical of his vocal disapproval of Roe v. Wade. Under the recess appointment, Pryor will serve on the appeals court through 2005. In the order issued Thursday, the court wrote:
Twelve Presidents have made more than 285 intrasession recess appointments of persons to offices that ordinarily require consent of the Senate. So, given the words of the Constitution and the history, we are unpersuaded by the argument that the recess appointment power may only be used in an intersession recess, but not an intrasession recess. Furthermore, what we understand to be the main purpose of the Recess Appointments Clause -- to enable the President to fill vacancies to assure the proper functioning of our government -- supports reading both intrasession recesses and intersession recesses as within the correct scope of the Clause. That an intersession recess might be shorter than an intrasession recess is entirely possible. The purpose of the Clause is no less satisfied during an intrasession recess than during a recess of potentially even shorter duration that comes as an intersession break.Read the full order [PDF]. JURIST's Paper Chase has background on the nomination. The Montgomery Advertiser has local coverage. Law.com has more.