by Matt Barr

Pryor marked

There is some little remarked discussion on SCOTUSblog about a constitutional challenge to the recess appointment of Judge William Pryor to the Eleventh Circuit. The argument (12 page brief in PDF format) is that Article II, Section 2 authorizes the President to "fill up all Vacancies that may happen during the Recess of the Senate, by granting commissions which shall expire at the End of their next Session," which is read to mean that the vacancy must occur during a time when the Senate is not in session.

Tom Goldstein, whose firm publishes the invaluable SCOTUSblog and who is performing the service of keeping us up to date on the blog, told the Associated Press in January "The president feels that any lunchtime he feels like it he can fill up the federal court." Objection, speculation; I'm not sure whether the President feels he can do that, but the larger question is indeed whether the President can in effect avoid a hostile Senate (or large Senate minority, as the case may be) by commissioning an Article III judge during a recess, when the Senate has had occasion to consider him, or could easily before or after the recess.

I don't buy the "tension" between the Recess Appointments Clause and the Good Behavior Clause of Article III ("The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior") -- insofar as the argument is the Good Behavior Clause might trump the Recess Appointments Clause (gee, I meant to appoint you till the end of the Senate's next term, but now that you're there, we have to let you stay for life! How about the "tension" between that and the Advice and Consent Clause?). But there is a great argument here (from Reply Brief For Petitioners):

Without the protection of life tenure, federal judges would be subject to "potential domination by other branches of government." This concern is especially acute in a case such as this, in which the judge in question must refrain from acting in any way that will disappoint the President or the Senate, lest he jeopardize his chances of being reappointed and confirmed to a permanent judgeship. Cf. Declaration of Independence para. 11 (listing grievance against King George III that "HE has made Judges dependent on his Will alone, for the Tenure of their Offices, and the Amount and Payment of their Salaries.")

(Citations, except cool one to the Declaration of Independence, omitted.) Indeed, Judge Pryor is in the unenviable position of having to keep one eye on how the Senate, and the media and popular opinion that influence it, perceive him while on his temporary commission. Just this morning, a talking head on MSNBC (didn't get the name) was arguing that Judge Pryor had been involved in over 60 cases on the Eleventh Circuit, and had yet to write one dissent! This was offered as proof he's "in the mainstream." Regardless whether he is or not, this is certainly not proof of it; it's more likely proof of a low profile.

Mr. Goldstein reports that the Justices of the Supreme Court were scheduled to consider the first four petitions challenging Judge Pryor's appointment at their Conference this morning.

(The title of this post is my tiny retaliation for all the Cubs headlines that cleverly [or not] play on Mark Prior's name: "Prior Restraint"; "Prior Notice"; etc.)

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