SENATOR EDWARD M. KENNEDY STATEMENT ON RECESS APPOINTMENTS
Before we get started talking about other judges, I want to share with you the results of the research, which I asked for on the validity of Mr. Pryor's recess appointment. I included that material in a letter and memo I sent to the judges of the 11th circuit last week, and I ask for these items to be placed in the record of this meeting.
What's very clear is that President Bush clearly went beyond anything any other President has ever done. For the first time in U.S. history he used a short holiday recess in the middle of a senate session to make a recess appointment of a temporary judge to a position that the constitution says is supposed to be filled by a lifetime appointee.
We might differ about whether there can ever be a valid recess appointment of an article-three judge at all - the Supreme Court has never looked at that question. But there's no doubt that the Pryor appointment places at risk the validity of every case he sits on.
There can also be no doubt under the Supreme Court and circuit court cases that every single judge on that court has the authority, and, I believe, the obligation, to raise this issue sua sponte - on his or her own initiative-even if the parties don't raise it.
So in the interest of the court itself, of the parties to its cases, and of justice, I hope the judges will raise the issue before any cases are infected with fatal error because of the invalidity of the Pryor appointment.
And I hope the president will refrain from any more of this kind of unconstitutional overreaching until the supreme court gets a chance to rule on this matter, as it will have to do to resolve this issue after the 11th circuit acts.
Just think of the kind of confusion this appointment will engender. The White House apparently thinks that the February non-legislative period was a "recess," and that the March non-legislative period will be another "recess," for recess appointment purposes. But, if so, then what we're now in must be our "next session" after the February recess. Of course, under the constitution, a recess appointee can only serve until the end of our "next session," so under the white house view, Pryor's term would have to end tomorrow, when we recess again.
Everything we in the Senate have done we have done under the Senate's longstanding rules. And our rule-making power is explicitly given to us in the constitution, as part of the framers' very specific intent that we act as a damper on the executive when it overreaches, and especially when it overreaches in appointing judges.