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Court Declines To Wade Into Battle on Judge

By Charles Lane
Washington Post Staff Writer
Tuesday, March 22, 2005; Page A15

The Supreme Court has decided to stay out of the bitter fight over judicial nominations, at least for now, announcing yesterday that it will not hear three challenges to the right of one of President Bush's appointees to sit on the federal appeals court.

The decision, which came nine months after the first of the challenges reached the Supreme Court, means that Judge William H. Pryor Jr. of the U.S. Court of Appeals for the 11th Circuit, who was appointed by Bush during a February 2004 Senate recess, may remain on the bench. His appointment expires next January.

Judge William H. Pryor Jr. of the 11th Circuit is a recess appointee. (Mickey Welsh, Montgomery Advertiser--AP)

Three litigants with cases pending before the 11th Circuit had said that Pryor should be disqualified because his appointment was a violation of the Constitution. It took place during a brief vacation in the middle of a session of Congress, they argued, rather than during a break between two sessions.

But the 11th Circuit ruled in favor of Pryor last October, and yesterday's decision, while not a ruling on the merits of the case, has the effect of letting the circuit's determination stand.

The litigants were supported by Sen. Edward M. Kennedy (D-Mass.), who had filed a friend-of-the-court brief urging the Supreme Court to consider invalidating Pryor's appointment.

But the Bush administration argued that the constitutional provision providing for recess appointments makes no distinction between "intra-session" recesses and "inter-sessions." It compiled a list of 285 intra-session recess appointments, including 14 federal judges, over the past 140 years.

A conservative former attorney general of Alabama whose name was initially submitted for Senate approval by Bush on April 9, 2003, Pryor, 42, has been at the center of an intense fight between Democrats and Republicans in the Senate. The debate was marked by GOP assertions that the Democratic attacks on Pryor's antiabortion views reflected anti-Catholic sentiment -- a charge that Democrats vigorously denied.

Bush appointed Pryor during the recess after Democrats had filibustered the nomination. He also nominated Pryor again for a full life-tenured position.

The precise legal reasons for the court's refusal to take on the issue were not clear from yesterday's brief order. But it is possible the justices felt the matter was not yet ripe.

In a published comment on one of the cases, Evans v. Stephens, No. 04-828, Justice John Paul Stevens said there were "significant constitutional questions" at stake but noted that the cases did not involve any final judgment made with Pryor's participation and so "there are valid prudential reasons supporting the decision to deny certiorari." The other two cases were Miller v. U.S. (04-38) and Franklin v. U.S (04-5858).

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