As I noted yesterday, the AP account of Ted Kennedy’s letter to the 11th Circuit Court of Appeals about Bill Pryor’s recess appointment didn’t go into a lot of detail about what, exactly, Kennedy wanted the appeals court to do. Fortunately, a report in The Hill today fleshes things out a bit.
To review for a moment, the White House used a brief Senate recess to appoint Pryor to the appeals court bench after his nomination was blocked in the Senate. Kennedy believes the appointment is unconstitutional. (There’s more background here.)
Last week, Kennedy wrote a letter to the 11th Circuit, asking its judges, as The Hill put it, to “take action on their own” regarding the controversy.
“If the court does not consider the issues of the validity of Judge Pryor’s appointment immediately,” Kennedy wrote in the letter, dated March 5, “any case in which he participates may be constitutionally tainted.”
[…]
Kennedy’s letter urges the judges to decide the case sua sponte, a Latin term meaning “of one’s own volition.”
A Democratic aide said the legal method was unusual but not unprecedented.
“Anybody can come in and bring it to the attention to the court,” said the aide, adding, “It fails to deal with it at its peril.”
As I’ve said before, Bush’s placement of Pryor on the bench warrants closer scrutiny, and I would argue it exceeds the constitutional framework for recess appointments, but I can’t help but think Kennedy’s sua sponte approach is a long shot. Is there a Plan B in case this doesn’t work out?
Granted, as Kennedy’s letter explained, the sua sponte tack is not without some historical precedent.
Kennedy cites previous occasions on which courts ruled of their own accord on jurisdictional issues that had not been formally challenged in court. In United States v. Woodley, argued before the 9th Circuit, the court examined jurisdictional problems sua sponte even though the issue had not been raised by the parties to the case.
In a Supreme Court case decided last year, Nguyen v. United States, the court held that a ruling by an improperly constituted appeals-court panel would be invalidated.
I have to assume Kennedy’s legal team is pursuing this approach because they don’t believe he’d have standing to file a traditional lawsuit challenging the appointment. I’m not as convinced, but they certainly know more about this than I do.
I’ll let you know if the 11th Circuit considers this seriously, but I’m not optimistic.