Court upholds Bush's appointment of judge during Senate break

ATLANTA -- A federal appeals court ruled yesterday that President Bush did not overstep his authority when he appointed William Pryor to the bench while the Senate was on a holiday break.

The US Court of Appeals for the 11th Circuit rejected a challenge by US Senator Edward M. Kennedy, Democrat of Massachusetts, who argued that the Alabama judge's appointment to the same court was an end-run around the Senate's right to confirm or reject the president's judicial nominees.

Pryor was appointed to the 11th Circuit during the Presidents' Day recess in February, after the Senate refused twice to bring his nomination to a floor vote.

His nomination had languished as abortion rights advocates fought Pryor over his criticism of the Roe v. Wade decision by the Supreme Court that legalized abortion. He also was criticized for a Supreme Court brief in which he compared homosexual acts to ''prostitution, adultery, necrophilia, bestiality, possession of child pornography, and even incest and pedophilia."

The president can appoint federal judges without the Senate's consent if the chamber is not meeting. But Kennedy and other Democrats argued that the right is valid only at the end of a Congress or during the recess between annual sessions, not during short breaks.

In an 8-to-2 decision, the court ruled that Bush's appointment of Pryor was legal.

''We are not persuaded that the president acted beyond his authority in this case: Both the words of the Constitution and the history of the nation support the president's authority," Chief Judge J.L. Edmonson said.

Pryor, who is now on the 11th Circuit, removed himself from the case. An aide to Pryor said the judge had no comment. Pryor is based in Birmingham, Ala.; the 11th Circuit serves Alabama, Florida, and Georgia. Recess appointments are temporary, while regular appointments are for life.

Pryor is scheduled to remain on the 11th Circuit until the end of through 2005.

In a statement, Kennedy said he hoped the US Supreme Court would consider the matter. ''No previous president in all our history has ever taken such an extreme view of the Constitution on the appointment of federal judges," he wrote.

In a dissent yesterday, Circuit Judge Rosemary Barkett said the ruling ''gives the president the power to repeatedly circumvent the Senate's advise-and-consent role."