The 11th Circuit Court of Appeals (search) on Thursday denied Sen. Edward Kennedy's (search) petition to file an amicus brief in three cases in order to challenge the constitutionality of Judge William Pryor's (search) recess appointment.
Kennedy, however, has vowed to keep challenging Pryor's appointment.
"It's disappointing that the United States Court of Appeals for the 11th Circuit declined to consider, at least for now, the constitutionality of President Bush's recess appointment of William Pryor to that court in February," Kennedy said in a statement.
"But it's not a decision on the merits. Sooner or later, the 11th Circuit or the Supreme Court will have to decide the issue, and sooner is better, since any decision in which Mr. Pryor participates may well be overturned. I'll keep pressing the issue," the Massachusetts senator added.
The appeals court ruled that Kennedy's request, filed less than a week before the full court is to hear one of the cases to which Kennedy was seeking to attach his brief, was "untimely."
The request was sent Wednesday to the 11th Circuit in the case of Adefemi v. Ashcroft, which challenges a Board of Immigration Appeals (search) decision that the now-defunct Immigration and Naturalization Service had enough evidence to deport Adefemi, a citizen of Nigeria, on a firearms offense. The case is set for arguments in front of the full court, or "en banc," on June 15.
None of the parties in any of the cases had argued that the 11th Circuit must address the constitutionality of Pryor's appointment. Nevertheless, Kennedy asked the court if he could file an amicus brief urging the court to consider it.
"No other president in U.S. history has ever made a recess appointment of a federal judge during such a recess of Congress as short as the one-week recess used by President Bush to appoint Mr. Pryor and bypass the Senate's constitutional role in his confirmation. He appointed Mr. Pryor on Friday, February 20, and the Senate returned to session on Monday, February 23," Kennedy said Thursday.
The filing suggested that the Recess Appointments Clause (search) granted to Bush should not be permitted during intra-session adjournments.
"The Recess Appointments Clause ... authorizes the president to act in an exceptional manner when Congress's absence prevents it from performing its constitutional functions. It should therefore be construed to apply narrowly to an actual inter-session 'recess,'" Kennedy's lawyers wrote.
Kennedy first wrote to all the judges on the court on March 5, asking them to find that Pryor was not validly appointed. When that didn't work, Kennedy filed a request to file an amicus brief, contending that the court must consider the constitutionality of Pryor's appointment as part of the three cases.
In its response to Kennedy's petition, Justice Department (search) lawyers argued that Kennedy should not be allowed to file his brief because he had made this request less than a week before oral arguments in this case.
"Senator Kennedy provides no explanation for his tardiness; and to permit him to inject new issues into this case now, on the eve of oral argument, would be unfair both to the Court and to the parties," DOJ lawyers wrote.
Kennedy's lawyers, including Laurence Tribe (search), said the court should bring up the issue exactly because the court has not addressed the question; no party to the en banc proceedings has yet raised the question; and the number of cases in which Pryor is participating "had grown far more rapidly than anticipated."
But DOJ lawyers objected to those arguments, saying the senator has no "standing" in the case — in other words, he doesn't have the right "interest" to raise these objections.
Pryor, the former Alabama attorney general, was granted a recess appointment to the court by President Bush back in February. Democrats had opposed his nomination last year because of his position on abortion and over his efforts to raise money for GOP attorney general candidates. He was among six Bush judicial nominees to be filibustered by Democrats.
The recess appointment, which will last only until the end of 2005, was the second Bush employed. He has since agreed with Democrats not to make any more recess appointments this year if Democrats allow the confirmation of 25 non-controversial judicial nominees before the Senate's August recess.
Fox News' Anna Stolley and Ellen Uchimiya contributed to this report.