More than forty years ago, it was simply "routine" when President John F. Kennedy recess appointed 25 judges to the federal bench in the span of a little more than a year. Amongst those judicial recess appointees was Griffin B. Bell, a Georgian, who was selected to serve as a circuit judge for the U.S. Court of Appeals for the 5th Circuit, which was then responsible for cases in Alabama, Florida, Georgia, Louisiana, Mississippi and Texas.

President Kennedy exercised his constitutional prerogative to install Judge Bell on October 5, 1961, and the U.S. Senate confirmed the jurist for a lifetime appointment four months later. In fact, President Kennedy didn’t even submit Judge Bell’s name to the Senate before placing him on the federal bench. Rather, Judge Bell’s formal nomination — for the seat he already occupied, albeit temporarily — was not forwarded to the Senate for its consideration until more than three months after the jurist had taken his seat on the bench. That fact didn’t alarm the Senate back then, and the world’s most deliberative legislative body quickly voted to confirm Judge Bell just three weeks after receiving the nomination, further demonstrating the unremarkable nature of President Kennedy’s move.

Fast forward eight presidents.

On February 20, 2004, President George W. Bush recess appointed William H. Pryor, Jr., an Alabamian, to fill a vacancy on the U.S. Court of Appeals for the 11th Circuit. President Bush installed Judge Pryor in the very same manner and to the very same court as President Kennedy had with Judge Bell more than forty years before. (Only the name of the court had changed when the former 5th Circuit was split up in 1981, leaving the 5th Circuit, which continued to cover Louisiana, Mississippi and Texas, and the 11th Circuit, which covered Alabama, Florida and Georgia.) But despite those obvious similarities, Judge Pryor has not been permitted to enjoy his ascension to the federal appellate bench in the way Judge Bell did — and primarily because of another Kennedy.

That Kennedy is, of course, the Senior Senator from Massachusetts and the younger brother of President Kennedy, Edward M. Kennedy, who has made it his personal mission to undermine the legitimacy of Judge Pryor and his authority as a jurist. But, in so doing, Senator Kennedy is not only tarnishing the reputation of Judge Pryor, but also the integrity of the court on which he sits and the cases which it decides.

Less than a week after Judge Pryor’s appointment, Kennedy began his public campaign to impugn the credibility of the judge and force him from his seat on the 11th Circuit. In comments to the Congressional newspaper The Hill, Senator Kennedy explained that he thought "there [we]re very substantive questions [as] to the legality" of the appointment, and that he had instructed his staff to put together a case challenging the constitutionality of Judge Pryor’s installation.

The Senator’s staff did just that, and, by March 5, 2004, Senator Kennedy sent a letter to each and every one of Judge Pryor’s colleagues on the 11th Circuit implicitly asking them to prevent the judge from hearing any cases. In the letter, Senator Kennedy "suggests respectfully … that each member of the Court may wish to raise the issue [as to whether Judge Pryor’s recess appointment is constitutional], so that the validity of his participation in cases can be resolved in advance, without subjecting future decisions to challenge." Senator Kennedy even goes so far as to threaten the validity of the decisions rendered by the court if Judge Pryor were to sit. "[T]he Supreme Court has made it clear that the question of whether an appellate court panel is properly constituted is so fundamental that a decision by an improperly constituted panel is invalid," the letter states.

To put it mildly, the judges of the 11th Circuit didn’t share Senator Kennedy’s concerns. The Chief Judge of the Circuit, J.L. Edmondson, faxed a polite response to the Senator, thanking him for taking an interest in the court, but rejecting any suggestion that Judge Pryor was improperly appointed or that his authority needed to be questioned. At the same time, the 11th Circuit moved forward with assigning Judge Pryor to cases, demonstrating the court’s view that he was a full-fledged member of the judiciary.

Nevertheless, despite this clear acknowledgement by the 11th Circuit of Judge Pryor’s legitimacy, Senator Kennedy did not halt his attack. Instead, he escalated the aggressiveness of his tactics. The Senator started filing brief upon brief in the cases to which Judge Pryor was assigned, arguing in each one that the judge’s appointment was invalid and that President Bush’s exercise of the recess appointment power was unconstitutional.

Senator Kennedy also kicked up his public relations offensive. He enlisted several well-known liberal constitutional scholars and Supreme Court practitioners, including Harvard Law Professor Laurence Tribe, to sign onto his briefs and to speak to the press in an attempt to add intellectual weight and a sense of urgency … to an argument that hasn’t prevailed in more than two centuries.

Thus, it shouldn’t have been a surprise when Professor Tribe flacked for the Senator’s position, telling Fox News that the propriety of Judge Pryor’s appointment had to be "resolved promptly because [he] continues to serve on an ever-increasing number of cases which may be tainted." Just as it shouldn’t have come as any surprise that Professor Tribe’s statement ignored hundreds of recess appointments to the federal courts, including 15 to the U.S. Supreme Court, which had never been thought to be problematic. Historical fact is immaterial. This is war, plain and simple.

In the end, none of Senator Kennedy’s legal and political maneuvers had the effect he desired. The 11th Circuit dismissed his briefs as untimely filed, and Judge Pryor remains seated on the bench and working from his chambers. Nevertheless, the Senator’s conduct over the past four months demonstrates just how far the battle over the judiciary has devolved.

In his brother’s day, it would have been unthinkable for a sitting United States Senator to hijack the legal disputes of others in an attempt to unseat a constitutionally appointed judge through a politically-motivated judicial coup d’etat. But that’s just what Senator Kennedy has tried to do.

It’s no doubt true that the "Judges War" is raging, and Senator Kennedy’s unbecoming conduct is its latest manifestation. If we could only rewind the confirmation process to when his brother was setting the tone and gentlemen populated the Senate.