The press is reporting that President Bush will install Alabama Attorney General William Pryor as a judge on the U.S. Court of Appeals for the Eleventh Circuit with a recess appointment. Readers of this space may recall that I am a Pryor fan (see here and here. I believe he has been unfairly maligned by his opponents, and that his record demonstrates his ability and commitment to separate his personal ideological views from his legal obligations. (A point he has reinforced recently. See here and here.) I believe he will be a splendid judge.
Nonetheless, I cannot say I am particularly happy about the appointment. While there is ample precedent for the recess appointment of federal judges, as documented in this Federalist Society White Paper, I am not a fan of the practice. I believe there is a qualitative difference between using the recess appointment power to fill vacancies within the President’s own administration and using it to install judges. Thus, in my view, it was wrong when President Clinton gave a recess appointment to Roger Gregory, and it is wrong for President Bush to give one to Bill Pryor. Yet given the inmcreasing partisan acrimony over and obstruciton of judicial nominations, it is certainly understandable why the Administration chose to take this step, but it is no less regrettable.
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