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Judges lose independence.

Byline: The Register-Guard

President Bush's second recess appointment to a federal appeals court raises an unsettling question: Will the job security of the next person named to the U.S. Supreme Court depend on who is elected president? The appointment process has become so politicized that the independence of the judiciary - the keystone of the rule of law - is at risk.

Bush named Alabama Attorney General William Pryor to the 11th U.S. Circuit Court of Appeals during a recent short Senate recess. Pryor had been unable to win Senate confirmation - a vote on his nomination and five others had been blocked by filibusters led by Democrats. Supporters had been unable to muster the 60 votes required to end the filibusters. Bush used a recess appointment to elevate one judge, Charles Pickering, to an appeals court position in January. Pryor is the second, and others may follow.

The Constitution provides for recess appointments so that presidents can temporarily fill vacancies while the Senate is adjourned. George Washington appointed John Rutledge chief justice of the Supreme Court through a recess appointment. Dwight D. Eisenhower gave recess appointments to three Supreme Court justices. The appointments last until the end of the congressional session. Pickering and Pryor then will have to return to the Senate for confirmation.

Among the many presidential appointments requiring Senate confirmation, nominations to the federal judiciary are unique. Federal judges are appointed for life, and Congress is prohibited from reducing their salary. By design, they are free of the threat of retribution by either the president or Congress - unless they came to the bench through a recess appointment.

Eisenhower's recess appointments drew attention to the dangers. Sen. Phillip Hart, D-Mich., said in 1960 that a judge who receives a recess appointment must decide "either to take a position during his period of probation which would please the president who appointed him and who could withdraw his name; or to please the Senate, which sooner or later would either approve or disapprove; or, at the other extreme, conscious of the fact that there would be public scrutiny and interpretation of his action in light of whether he was bending to the Senate or the president, he could rear back and bend the other way in order to prove that he was subservient to neither branch."

Neither senators nor presidents have wanted to put judges in such a no-win position, so judicial recess appointments have become rare. Senators of both parties have spoken against them. Sen. Trent Lott, R-Miss., said "any appointment of a federal judge during a recess should be opposed." Sen. James Inhofe, R-Okla., said it was "outrageously inappropriate for any president to fill a federal judgeship through a recess appointment in a deliberate way to bypass the Senate."

Both senators spoke in 2000, after President Clinton made his first and only judicial recess appointment. They have not spoken in a similar vein about the Pryor and Pickering appointments. Those are presented not as bypassing the Senate, but as sidestepping an obstructionist Democratic minority.

Both sides have raised the stakes in turn - first Bush by nominating people who can't win bipartisan support, then the Democrats by making unprecedented use of the filibuster, and now Bush again through his use of recess appointments. A future Democratic president can expect to have a hard time winning Senate confirmation for nominees. A Republican president would have serious trouble with a Democratic Senate. When either party is in the minority, it will use all its powers to block nominees it finds objectionable. Recess appointments, once rare, could become routine.

The independence of the judiciary will be compromised if judges feel pressure to politicize their decisions in order to keep their jobs. The U.S. Supreme Court has never ruled on the question of whether a person can receive a fair trial before a judge who is unprotected by a lifetime appointment. Thanks to the hardball tactics of both parties, that question will come forward soon.
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Title Annotation:Editorials; Recess appointments create political risks
Publication:The Register-Guard (Eugene, OR)
Article Type:Editorial
Date:Mar 1, 2004
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