William Pryor's Gamble on Recess Appointment Pays Off
Liberal Democrats' abortion politics backfires
As 2003 came to an end, William Pryor’s nomination to the Eleventh Circuit was trapped in limbo by the Senate Democrats’ filibuster. George W. Bush rescued Pryor from that limbo by issuing him a recess appointment.
Pryor’s judicial career might well have ended when his recess appointment expired at the end of the Senate’s 2005 session. But that’s not at all how things turned out. The extraordinary measures by liberal Democrats to block Bush’s judicial nominees backfired on them. Pryor’s blunt and direct testimony on Roe v. Wade and abortion had the ironic effect of ensuring that he was ultimately confirmed.
Liberal Democrats had aimed to stigmatize as unacceptable any judicial nominee who opposed Roe. But their more moderate colleagues who joined the bipartisan “Gang of 14 Agreement” in May 2005 expressly recognized that it was not disqualifying for an appellate nominee to regard Roe as “the worst abomination in the history of constitutional law” and to decry that it had “led to the slaughter of millions of innocent unborn children.”
Pryor’s confirmation in June 2005 helped pave the way for Samuel Alito’s confirmation to the Supreme Court in January 2006—and for the overturning of Roe many years later.
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As we have seen, the filibuster campaign that Senate Democrats launched against George W. Bush’s appellate nominees in 2003 led the White House to explore recess appointments as a workaround. The main shortcoming of a recess appointment was that it was temporary in duration. Under the Recess Appointments Clause of the Constitution (Article II, section 2, clause 3), a recess appointment “expire[s] at the End of [the Senate’s] next Session.” A nominee might well be disinclined to disrupt his career for a temporary judgeship if he feared that his nomination wouldn’t be confirmed during the period of the recess appointment. And he might even worry that accepting a recess appointment would damage his confirmation prospects.
Charles Pickering was in a unique position when Bush recess-appointed him to the Fifth Circuit in January 2004. Pickering’s intersession recess appointment would expire when the Senate recessed late in 2004. But Pickering, having been a federal district judge since 1990, knew that he would qualify for a lifetime judicial pension on his 67th birthday in May 2004. So he faced no real downside risk.
William Pryor’s situation was very different. When 2004 began, he had three more years to serve in his second (and final) term as Alabama attorney general. He would have to give up that position if he accepted a recess appointment. On the plus side, he might have learned from the example of his former boss Jeff Sessions, whose nomination to a district-court seat was defeated in 1986, that being rejected by the Senate wouldn’t hurt, and might actually help, any ambitions he had for higher political office.
Whatever Pryor’s thinking was, he decided to accept the White House’s proposal of a recess appointment. Unlike Pickering, though, Pryor would receive an intrasession recess appointment. An intrasession recess appointment has the odd advantage of lasting longer than an intersession recess appointment. If Pryor had received an intersession recess appointment, it would have expired at the end of the Senate’s 2004 session, as that would be the Senate’s “next Session” after the appointment was made. But under the well-settled understanding, an intrasession recess appointment would continue through the end of the session in which it was made and would expire at the end of the Senate’s next session.
During a ten-day intrasession recess in February 2004, Bush recess-appointed Pryor to the Eleventh Circuit. While Pickering’s recess appointment, made a month earlier, would expire at the end of the Senate’s 2004 session, Pryor’s would continue through the Senate’s 2005 session. So he had an extra year in which the Senate could confirm his nomination without his enduring a disruptive break in his judicial service.
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I was principal deputy in the Department of Justice’s Office of Legal Counsel when Bush recess-appointed Pryor. One of the duties of OLC is to advise the White House counsel’s office on matters like recess appointments. While I have no particular memory of the matter (and also wouldn’t say if I did), I was very likely the OLC attorney who confirmed to the White House that under OLC precedents Bush could recess-appoint Pryor during that 10-day intrasession recess and that his recess appointment would last until the Senate session in 2005 ended.
Whether those OLC precedents were correct—whether Bush in fact had constitutional authority to issue his recess appointment of Pryor—is a very different matter. Here’s the full text of the Recess Appointments Clause:
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
The validity of Bush’s recess appointment of Pryor requires “yes” answers to each of these four questions:
Does the president’s authority under the Recess Appointments Clause extend beyond executive-branch vacancies to judicial vacancies?
Does a vacancy “happen during the Recess of the Senate” if it arose before the recess? (As with Roger Gregory and Charles Pickering, the vacancy to which Pryor was appointed arose long before the recess—in Pryor’s case, more than three years before.)
Does the president’s authority apply at all during intrasession recesses?
Is a 10-day intrasession recess sufficiently long to enable the president to exercise the recess-appointment power?
In October 2004, the en banc Eleventh Circuit (in Evans v. Stephens) addressed a challenge to Pryor’s recess appointment. The court, over one dissent (and with Pryor recused), answered all four of these questions in the affirmative.
A decade later, in NLRB v. Noel Canning, the Supreme Court divided 5 to 4 on the questions whether a president has any authority to make an intrasession recess appointment and on whether a vacancy that pre-exists a recess can be said to “happen during the Recess.” Justice Scalia’s opinion answering these questions in the negative is very compelling. I would venture to guess that Judge Pryor would strongly agree. Whether he had any view on the matter when he accepted the recess appointment in 2004 is doubtful. But it’s nonetheless striking that he first became an Eleventh Circuit judge through a means that he might now believe should have been regarded as unconstitutional.
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In the November 2004 elections, Senate Republicans expanded their majority from a very tight 51-to-49 edge to a much more comfortable margin of 55 to 45. That election provided a stark lesson for Democratic senators in red or purple states. Senate Democratic leader Tom Daschle lost his bid for re-election in South Dakota in a race in which his obstruction of Bush’s judicial nominees had (in the words of the victorious John Thune) an “amazing” impact.
When Democrats continued their filibuster campaign against Bush’s appellate nominees in 2005, Senate majority leader Bill Frist knew he had to end it. I’m going to address his effort and its consequences more fully in a separate post soon. Here I’ll just offer a brief summary.
Frist worked in the spring of 2005 to garner the fifty votes needed (along with Vice President Dick Cheney’s tie-breaking vote) to abolish the filibuster—the 60-vote supermajority for cloture—on judicial nominations. On the verge of a Senate floor vote, Republican senator John McCain engineered the “Gang of 14 Agreement.” The seven Republicans who joined the Agreement committed to oppose Frist’s effort to abolish the filibuster and thus ensured that it would not have the votes needed (55-7<50). The seven Democrats who joined the Agreement committed to support the filibuster of judicial nominees “only under extraordinary circumstances,” and they thus ensured that the 60-vote threshold for cloture on judicial nominations would ordinarily be reached (55+7>60). (To be clear: All the signatories made the same commitments; I am simply highlighting the respects in which the commitments were significant.)
Most importantly for our immediate purposes, the signatories to the Gang of 14 Agreement listed William Pryor among the three specified nominees for whom they committed to support cloture. That meant that Pryor would finally get a Senate floor vote on his nomination.
Why did the members of the Gang of 14 expressly commit to support cloture on Pryor’s nomination? Pryor’s nomination had become a cause célèbre among conservatives nationally precisely because he had spoken out so clearly and unabashedly at his confirmation hearing on Roe v. Wade and abortion. The Republican members knew that any deal had to include Pryor. As for the seven Democratic members, they were so eager to get a deal that prevented abolition of the judicial filibuster that they weren’t going to stand against Pryor.
On June 8, 2005, the Senate invoked cloture on Pryor’s nomination by a vote of 67 to 32. The next day, the Senate confirmed Pryor’s nomination by a vote of 53 to 45. Republican senators Lincoln Chafee, Susan Collins, and Olympia Snowe voted against Pryor, and Lisa Murkowski did not vote. Democratic senators Ben Nelson and Ken Salazar voted for Pryor.
The vote margin lends support to my speculation in last week’s post that Democrats might have defeated Pryor’s nomination in 2003 if they had allowed a floor vote on it instead of filibustering it. It’s worth noting that while Arlen Specter ended up voting for Pryor in 2005, he might well not have done so in 2003. As I have explained, in part because he was a vocal supporter of Roe, Specter had faced strong conservative opposition to his taking over the chairmanship of the Senate Judiciary Committee in 2005. Specter’s longtime friend and confidant, Third Circuit judge Edward Becker, weighed in with Specter in support of Pryor and advised him that getting Pryor confirmed would protect his chairmanship.
On June 10, 2005, President Bush issued Pryor a regular commission to the Eleventh Circuit that superseded his recess appointment.
On June 3, 2020, William Pryor began his tenure as chief judge of the Eleventh Circuit.