As you may know, Sen. Edward Kennedy (D-Mass.), infuriated by Bush’s recess appointment of Bill Pryor to the 11th Circuit, told The Hill two weeks ago that he’s considering a legal challenge to the practice. (For more background, check my previous post on the subject.)
Apparently, this wasn’t just an academic exercise. The AP is reporting:
In a letter released Monday, Kennedy, a high-ranking member of the Senate Judiciary Committee, wrote to the 11th U.S. Circuit Court of Appeals that “a serious question exists as to whether Judge Pryor’s recess appointment is constitutional.” He asked the court to determine the validity of the appointment, so as to not taint any decisions in which Pryor may be involved.
Recess appointments can only come “at the end of a Congress or the recess between the annual sessions of Congress,” Kennedy wrote.
“No other Article III judge in the nation’s history has ever received a recess appointment during a brief holiday period in the midst of a session of Congress,” Kennedy added in a memo attached to the letter.
[…]
“The judges of the Court of Appeals for the 11th Circuit cannot and should not allow its upcoming cases to be tainted by the presence … of a judge who may well be constitutionally or statutorily ineligible to sit,” Kennedy said.
I’m glad Kennedy is pursuing this, and there are certainly some legitimate constitutional questions to be addressed, but the AP account of Kennedy’s letter is somewhat vague.
The article suggests that Kennedy “asked the court to determine the validity of the appointment.” It was a paraphrase, so we don’t know exactly what his letter requested. If the AP account is accurate, it sounds like Kennedy was asking for an “advisory opinion” about the constitutionality of a recess appointment. Unfortunately, that doesn’t make sense; appeals courts can’t issue advisory opinions and Kennedy surely knows that.
Perhaps Kennedy was giving the 11th Circuit a heads-up about his intentions to challenge the recess appointment, as if to say, “Don’t get too used to having that Pryor guy around.” But even that’s confusing since it’s not up to the 11th Circuit to exclude Pryor from judicial proceedings just because Kennedy might file a lawsuit.
Nevertheless, this continues to be a question ripe for a lawsuit. So long as Kennedy could get standing, it’d be a fun case.