Bush Appoints Bill Pryor to 11th U.S. Circuit Court of Appeals Using Vague Procedure

Utilizing a controversial procedure known as a recess appointment, President George W. Bush installed conservative Alabama Attorney General Bill Pryor on the 11th U.S. Circuit Court of Appeals on Friday. The move bypassed the Senate, where Democrats had been blocking Pryor’s appointment by a filibuster.

In his role as Attorney General of Alabama, Pryor had unsuccessfully attempted to defend Alabama's obscenity code, which classified sexual devices such as dildos as obscene. In 2001, Pryor filed obscenity charges against Barnes and Noble for selling photography books by Jock Sturgis and David Hamilton.

The Senate was on recess to allow members to conduct business in their home states from Feb. 16 to Feb 23.

The constitution affords the President the right to nominate judges, but the nominations must be approved or denied by Senate – unless a bench vacancy occurs while the senate is not in session. Then the President may appoint a judge to immediately fill the vacancy – though only until the end of the next session of Congress, which ends in 2005. That is unless the judge is later confirmed by the Senate, an unlikely prospect.

Pryor and Charles Pickering, the judge who was appointed to the 5 U.S. Circuit Court of Appeals last month by the same maneuver, were nominated by Bush three years ago, but were being filibustered by Senate Democrats – who objected to their anti-abortion and anti civil liberties stances.

Recess appointments are constitutionally vague. For instance, it is not clear if the open position needs to become available during a recess, or if the position simply needs to be available during a recess for the President to make a recess appointment, as is the case for Pryor.

Normally the President works off a list of judges both sides approve of for recess appointments. This is the second month in a row that Bush has used the procedure to appoint judges that he knew the Senate would not approve of.

The Senate still has the option of refusing to pay the salaries of the judges or challenging the vague law in court, something that both sides have traditionally avoided because of benefits that recess appointments can provide both sides.

The next Senate recess is March 15 to 19, when there’s a possibility that Bush may once again appoint another judge without Senatorial approval – possibly Priscilla Owen, another arch-conservative judge that Bush has been pushing for three years.

The 11th U.S. Circuit Court of Appeals covers Alabama, Georgia, and Florida and is second only to the United States Supreme Court.