Kennedy loses bid to block Pryor appointment to federal court

<p>Sen. Edward Kennedy lost a bid to block former Alabama Attorney General Bill Pryor's appointment to the federal appeals court in Atlanta when Pryor's fellow judges turned down the Massachusetts Democrat's motion to argue it was unconstitutional.</p><p>Kennedy's motion "is untimely, and we decline to grant leave for a late filing," Chief Judge J.L. Edmondson wrote Thursday, noting the deadline had expired April 28.</p><p>President Bush installed Pryor on the bench Feb. 20 to thwart a Democratic filibuster in the Senate. Bush said he was making a recess appointment. But in his motion to the 11th Circuit, Kennedy said it was not a true recess appointment.</p><p>A true recess appointment, he said, can be made only between sessions of Congress. In this case, Kennedy argued, the appointment came during an intra-session adjournment as the Senate had taken 10 days off for the Presidents Day holiday.</p><p>The Senate voted twice last year not to confirm Pryor, said Kennedy spokesman David Smith. The recess-appointment power was designed so the president could make appointments during the monthslong breaks between congressional sessions, not brief recesses during the middle of a session, Smith said.</p><p>Bush misused the power to appoint a nominee the Senate had twice shot down, disregarding the separation of powers designed to ensure checks and balances, Smith said.</p><p>"This is the shortest mid-session recess in U.S. history," Smith said. "The power was abused here to avoid Senate scrutiny."</p><p>The 11th Circuit was closed Friday in observance of the Ronald Reagan holiday, but Smith said Edmondson "did not seem to rule on the merits of the case," only the timing.</p><p>Kennedy asserted that Pryor's presence could lead to the court having to take up again appeals that Pryor has considered.</p><p>Of particular concern is that Pryor is scheduled to hear three cases June 15, Smith said. Any decision Pryor makes could be voided if the matter of his appointment is not resolved, he said.</p><p>Because of Edmondson's ruling, Kennedy will not be allowed to argue the issue when the full 12-member court meets Tuesday.</p><p>The decision against Kennedy says both Pryor and Judge Ed Carnes, also a former Alabama assistant attorney general who has served on the 11th Circuit since 1992, had recused themselves from the Kennedy matter.</p><p>The 11th Circuit typically assigns three-judge panels to hear appeals, but it meets once or twice a year with its full contingent to consider a handful of cases. The full court will meet again in the fall.</p><p>"Sooner or later, the 11th Circuit or the Supreme Court will have to decide the issue, and sooner is better, since any decision in which Mr. Pryor participates may well be overturned. I'll keep pressing the issue," Kennedy said Friday in a statement.</p><p>Pryor's federal appointment was vigorously opposed by Democratic senators who objected to his past comments and writings on abortion and homosexuality.</p><p>Bush said Pryor was a "leading American lawyer" and said he had been pushed past the Senate's normal confirmation process because of "unprecedented obstructionist tactics," meaning the filibuster.</p>