The Eleventh Circuit Court of Appeals has rejected a challenge to the authority of Judge William Pryor, whom President Bush appointed to the court during an intra-session Senate recess earlier this year. Evans v. Stephens, No. 02-16424, 2004 U.S. App. LEXIS 21354, 2004 WL 2300457 (11th Cir. Oct. 14, 2004). The court found that recess appointments to Article III courts are allowed under the Recess Appointments Clause, that "the Recess of the Senate" includes an intra-session recess, and that vacancies need not arise during the recess in order to "happen during the Recess." The court relied heavily on the fact that Presidents from the beginning of the Constitution have made numerous recess appointments, including all of those situations.
The court declined to address, as a non-justiciable political question, the argument that the circumstances of President Bush's appointment of Pryor, coming after the Senate had blocked his confirmation during regular session, showed an abuse of the President's recess appointments power in order to avoid the advice and consent of the Senate.
Lauren K. Saunders, National Senior Citizens Law Center
The Eleventh Circuit Court of Appeals has rejected a challenge to the authority of Judge William Pryor, whom President Bush appointed to the court during an intra-session Senate recess earlier this year. Evans v. Stephens, No. 02-16424, 2004 U.S. App. LEXIS 21354, 2004 WL 2300457 (11th Cir. Oct. 14, 2004). The court found that recess appointments to Article III courts are allowed under the Recess Appointments Clause, that "the Recess of the Senate" includes an intra-session recess, and that vacancies need not arise during the recess in order to "happen during the Recess." The court relied heavily on the fact that Presidents from the beginning of the Constitution have made numerous recess appointments, including all of those situations.
The court declined to address, as a non-justiciable political question, the argument that the circumstances of President Bush's appointment of Pryor, coming after the Senate had blocked his confirmation during regular session, showed an abuse of the President's recess appointments power in order to avoid the advice and consent of the Senate.
Lauren K. Saunders, National Senior Citizens Law Center