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Thursday, Nov 26, 2009
President Bush's underhanded right-wing judicial appointment faces a constitutional challenge from the Sierra Club.
May 28, 2004 | Their plights gave new meaning to the phrase "appointed to the bench": Miguel Estrada, William Myers III and Janice Rogers Brown were among half a dozen right-wing judicial nominees that President Bush tried -- and failed -- to install as federal court judges. Stonewalling and filibusters by Senate Democrats consigned them to the dugout bench.
Now the Sierra Club is working to relegate Bush's most recent federal judicial appointee to the dugout as well, albeit after he's had a few at bats. William Pryor, former Alabama attorney general, has already made it onto the Atlanta-based 11th U.S. Circuit Court of Appeals, much to the chagrin of enviros, who point to his past efforts to weaken the Clean Water Act, the Endangered Species Act, and environmental-justice protections.
Senate Democrats successfully stymied Pryor's appointment for some 10 months, until Bush pushed it through via a recess appointment in February -- a move critics say was underhanded, if not illegal. Under the Constitution's "recess clause," the president is given the authority to fill judicial vacancies without Senate approval when Congress is in recess. In this case, however, the "recess" was a weeklong holiday in February, not one of the longer breaks typically dubbed recesses. Bush's move set off a firestorm of criticism from public-interest groups and Senate Dems, including Sen. Patrick Leahy, D-Vt., ranking member of the Senate Judiciary Committee, and Sen. Edward Kennedy, D-Mass., who questioned the constitutionality of the appointment.
Leahy called the recess appointment "an abuse of power" and continued, "This is unprecedented. Actions like this show the American people that this White House will stop at nothing to try to turn the independent federal judiciary into an arm of the Republican Party."
Last Wednesday, Pat Gallagher, director of the Sierra Club's Environmental Law Program, submitted a motion to remove Pryor from the pool of judges to be considered for a case filed in Atlanta by the Sierra Club and Georgia Forestwatch over the licensing of coal-fired power plants. Gallagher requested that Pryor be yanked from the suit "not because of his radical, neo-federalist views of the Constitution -- which make him unfit to make fair rulings on the environment -- but because his appointment was blatantly unconstitutional," he told Muckraker. If the Sierra Club is successful in proving this claim, Pryor's recess appointment will have to be officially yanked.
"We've known for some time that George Bush has a court-plan agenda to pack the federal courts with extremists," Gallagher added. "But in this case he's used extreme tactics and violated the Constitution to promote his agenda."
Pryor's office did not respond to Muckraker's request for comment.
Given Pryor's track record, it's clear his removal would be a boon to the environment. In 2001, while serving as Alabama's attorney general, he filed an amicus brief in Gibbs vs. Babbitt, asking the Supreme Court to overturn a federal ruling protecting endangered red wolves from being hunted on private land. The Supreme Court refused to take the case, giving clearance to Judge J. Harvie Wilkinson's ruling in the 4th Circuit Court in favor of wolf protection. Wilkinson lambasted Pryor's argument, saying it interpreted federal law in a way that would "place in peril the entire federal regulatory scheme for wildlife and natural-resource conservation."
