Bush, Frustrated by Democrats, Again Bypasses Senate on Judge

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Times Staff Writer

President Bush on Friday appointed a second controversial judicial nominee -- Alabama Atty. Gen. William H. Pryor Jr. -- to the federal bench by using powers that circumvented the Senate confirmation process, escalating a fight with Democratic lawmakers over the White House’s court candidates.

Frustrated by Democratic-led filibusters that have blocked the confirmation of some of his nominees, Bush used his authority to make an appointment while Congress was in recess. He placed Pryor on the 11th U.S. Circuit Court of Appeals in Atlanta until the end of 2005.

The president’s end run rankled Democratic lawmakers, who accused him of making the appointment to score political points with his conservative base. The action came as lawmakers were in recess for the week for the Presidents Day holiday. The Senate goes back into session Monday.


Last month, Bush appointed Mississippi Judge Charles W. Pickering Sr. to the 5th U.S. Circuit Court of Appeals in New Orleans until year’s end. And the White House has signaled that more such appointments -- which presidents of both parties have employed in the past -- might be in the offing during congressional recesses.

Bush said in a statement Friday that the action was necessary because the Senate’s Democratic minority has used “unprecedented obstructionist tactics” to prevent confirmation votes on Pryor and other judicial nominees.

“Their tactics are inconsistent with the Senate’s constitutional responsibility and are hurting our judicial system,” the president said.

Democrats noted that they have allowed confirmation of 171 of Bush’s nominations to the federal bench while blocking 6 and pointed out that Republicans blocked more than 60 of President Clinton’s choices to be federal judges.

Sen. Edward M. Kennedy (D-Mass.), a senior member of the Senate Judiciary Committee, called the Pryor appointment a “flagrant abuse of presidential power.”

“What will the president try next -- a recess appointment when the Senate is in recess for a weekend?” Kennedy asked.


Political analysts suggested the maneuver was designed to help Bush repair his standing with conservative supporters, who have expressed displeasure with the growing level of federal spending -- including the higher-than-expected cost for the Medicare prescription drug benefit signed into law by the president.

“The administration has clearly made judgeships an election issue, both at the presidential and Senate levels,” said Elliot E. Slotnick, a political scientist at Ohio State University who has studied judicial nominations.

Larry Sabato, a University of Virginia political scientist, said: “Bush is starting to see just how difficult a reelection he faces. In order to win, he must keep his party base energized.”

Pryor’s appointment, Sabato said, will be popular with conservatives because “Bush is sticking it to Senate Democrats -- the group most hated by the GOP right.”

Pryor, 41, was nominated to the 11th Circuit post by Bush in April. In July, he fell seven votes short of the 60 needed to overcome a Democratic filibuster. Two Democrats, Sens. Zell Miller of Georgia and Ben Nelson of Nebraska, joined the Senate’s 51 Republicans in voting to break the filibuster.

Democrats have accused Bush of trying to tilt the federal courts to the right, and said they were doing nothing different than what Republicans did when a Democrat occupied the White House.


Critics have called Pryor a conservative activist who opposes abortion rights and has described the landmark 1973 Roe vs. Wade ruling that legalized abortion as “the worst abomination of constitutional law in our history.”

Pryor’s appointment drew criticism from civil rights and environmental groups.

On Friday, Bush said Pryor’s record “demonstrates his devotion to the rule of law and to treating all people equally under the law.”

But Sen. John F. Kerry of Massachusetts, the Democratic front-runner for the presidential nomination, assailed Bush for taking “yet another action to diminish his credibility with the American people” by bypassing the Senate confirmation process a second time.

Kerry said in a statement that Pryor has “a history of partisanship and pursuing an ideological agenda that does not represent mainstream views.”

Sen. John Edwards of North Carolina, another Democratic presidential candidate, said Bush was “abusing his authority as president to put someone on the bench who is likely to abuse his authority as a judge. This is one more example of why we need a new president.”

Senate Majority Leader Bill Frist (R-Tenn.), however, said Pryor is “a man of integrity committed to the rule of law, not making law from the bench. I am confident he will impartially interpret the law and uphold justice.”


In a statement, Pryor called the appointment “bittersweet,” describing his sadness in leaving the attorney general’s office but expressing gratitude “for the opportunity President Bush has afforded me to serve our nation by supporting and defending the Constitution of the United States.”

Pryor was sworn in Friday in Alabama.

The recess appointment allows Pryor to serve until the end of 2005. Because Pickering was appointed before the start of this year’s session, he can serve only until the end of this year. Both men would have to be renominated and confirmed to retain their seat for life.

Sen. Dianne Feinstein (D-Calif.), a Senate Judiciary Committee member, said in an interview that Pryor “may be the darling of the far right, but after listening and reading his background, his temperament is really not that of a judge.”

Feinstein described Bush’s attitude as “to heck with the process.” But, she said, “We’re still going to try to be as fair as we possibly can be and move those judges we think are not problematic, and say no to those judges we think are problematic.”

Sen. Patrick J. Leahy of Vermont, senior Democrat on the Senate Judiciary Committee, said Pryor’s appointment shows the White House will “stop at nothing to try to turn the independent federal judiciary into an arm of the Republican Party.”