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Time to rent the robe

National | COURTS: Bush uses his power to work around an obstructionist Senate and place his judges (temporarily) on the bench-as the courts show once again why the stakes are so high

Issue: "Remaking the family," March 6, 2004

Two down, four to go. On Feb. 20, for the second time in as many months, President Bush used a recess appointment to bypass Senate Democrats blockading his judicial nominations. If he keeps up that pace, by June the Democrats will have no nominees left to filibuster.

This time, the beneficiary of Mr. Bush's constitutional power was Alabama Attorney General William Pryor, whose nomination to the 11th Circuit Court of Appeals had languished in the Senate for 10 months, largely because of his staunch opposition to abortion. With a Democratic minority refusing to allow an up-or-down vote that would surely have approved the nomination, Mr. Bush took advantage of a one-week recess to bypass the partisan roadblock.

Democrats, not surprisingly, reacted with outrage. Sen. Ted Kennedy thundered against a "flagrant abuse of presidential power," while Sen. Patrick Leahy warned that the appointment would "roll back the hard-won rights of consumers, minorities, women, and Americans with disabilities."

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Critics accused Mr. Bush of caving to conservatives angry over soaring budget deficits and lax new immigration policies. "The president is on shaky ground with the hard right and is using this questionably legal and politically shabby technique to bolster himself," said Sen. Charles Schumer (D-N.Y.). "The only solace we have is that Mr. Pryor will be off the bench in 10 months."

Well, not exactly. Mr. Pryor actually has about 22 months because recess appointments are good until the end of the next Congress. The second session of the 108th Congress just convened in January, so his appointment won't expire until the final gavel comes down on the first session of the 109th Congress, sometime late in 2005.

Unfortunately for the president, not everyone on the "hard right" was happy with the appointment of Mr. Pryor, who led the disciplinary effort against Roy Moore, the former Alabama Chief Justice.

"Pryor will likely be a fine addition to a federal judiciary run amok," said Constitution Party Chairman Jim Clymer in a statement. "Like many of his colleagues, he not only fails to recognize the religious principles underlying our laws, but is willing to ignore the Constitution which is based on them as well."

Despite such occasional, overheated rhetoric, the Pryor appointment drew widespread praise from conservatives at the same time it hardened the resentment of Capitol Hill Democrats. Senate Minority Leader Tom Daschle (D-S.D.) even warned that his party might leave Washington without formally recessing in the future in order to prevent any further recess appointments.

Such hard-line positions don't bode well for any future Supreme Court nominations in a closely divided Senate. The importance of such nominations was reinforced again on Feb. 25 when the court ruled that states are free to discriminate against religious students in awarding need-based scholarships.

The 7-2 decision in Locke vs. Davey, considered one of the most important religious-liberty cases of the current term, dismayed conservatives. "We are saddened that Joshua Davey can be treated as a second-class citizen because of his decision to major in this area of theology," said Alan E. Sears, general counsel of the Alliance Defense Fund.

As a college student in Washington, Mr. Davey had his state-funded scholarship revoked because he sought a theology degree. ADF and other religious-freedom watchdogs argued that amounted to religious discrimination, but the court disagreed. Washington's prohibition against publicly funded religious study "does not require students to choose between their religious beliefs and receiving a government benefit," Chief Justice William Rehnquist wrote for the majority. "The state has merely chosen not to fund a distinct category of instruction."

Nonsense, said Justice Antonin Scalia. "Let there be no doubt: This case is about discrimination against a religious minority," he wrote. "In an era when the court is so quick to come to the aid of other disfavored groups, its indifference in this case, which involves a form of discrimination to which the Constitution actually speaks, is exceptional."

The 7-2 decision showed how far conservatives have to go in establishing a reliably conservative court. Unless Republicans pick up a half-dozen Senate seats in November, a conscientious conservative like Mr. Scalia will have almost no chance of making it to the bench.

Unless, of course, Mr. Bush decides to make another recess appointment.

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