Its
no doubt true that the "Judges War" is raging, and Senator
Kennedys unbecoming conduct is its latest manifestation.
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Conduct
Unbecoming a United States Senator
What
a difference a Kennedy makes.
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 didnt even submit Judge Bells name to the Senate
before placing him on the federal bench. Rather, Judge Bells
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 didnt alarm the Senate back then,
and the worlds most deliberative legislative body quickly
voted to confirm Judge Bell just three weeks after receiving the
nomination, further demonstrating the unremarkable nature of President
Kennedys 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 Pryors 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 Pryors
installation.
The
Senators staff did just that, and, by March 5, 2004, Senator
Kennedy sent a letter to each and every one of Judge Pryors
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 Pryors 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 didnt share
Senator Kennedys 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 courts
view that he was a full-fledged member of the judiciary.
Nevertheless,
despite this clear acknowledgement by the 11th Circuit of Judge
Pryors 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 judges appointment
was invalid and that President Bushs 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 hasnt prevailed in more than two centuries.
Thus,
it shouldnt have been a surprise when Professor Tribe flacked
for the Senators position, telling Fox News that the propriety
of Judge Pryors 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 shouldnt have
come as any surprise that Professor Tribes 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 Kennedys 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 Senators conduct
over the past four months demonstrates just how far the battle over
the judiciary has devolved.
In
his brothers 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 detat. But thats
just what Senator Kennedy has tried to do.
Its
no doubt true that the "Judges War" is raging, and Senator
Kennedys 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.
[Posted
June 24, 2004]
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