WASHINGTON – A federal appeals court on Thursday upheld the recess appointment of William H. Pryor (search) to the 11th Circuit Court of Appeals.
The 11th Circuit, with Pryor recused, found that President Bush — by appointing Pryor — did not "exceed his constitutional authority in a way that causes Judge Pryor's judicial appointment to be invalid."
The majority of the divided court found that the U.S. Constitution authorizes recess appointments of judges and that the Constitution does not differentiate between inter and intrasession recesses.
In February, Bush installed Pryor on the 11th U.S. Circuit Court of Appeals (search) while the Senate was on a break. Senate Democrats had several times blocked the president's nominee, a former Alabama attorney general.
Democrats said they opposed Pryor because he had criticized the Supreme Court's Roe v. Wade abortion decision. He also had been criticized for a Supreme Court brief in which he compared homosexual acts to "prostitution, adultery, necrophilia, bestiality, possession of child pornography and even incest and pedophilia."
It was the second time Bush used his power of the recess appointment. A month earlier, the president promoted Mississippi federal Judge Charles Pickering to the 5th U.S. Circuit Court of Appeals.
Sen. Edward Kennedy, D-Mass., and others had argued that Pryor's appointment was invalid because it was during a short break in the Senate's session, rather than when the Senate had shut down sine die, at the end of each legislative term. Kennedy had wanted to file amicus briefs in three cases that challenged Pryor's standing in the court, but in June, the 11th Circuit ruled that Kennedy had missed the deadline.
In July, the 11th U.S. Circuit Court of Appeals, based in Atlanta, asked the Bush administration to defend the president's appointment of Pryor to its ranks while the U.S. Senate was out of session. The court wanted the Justice Department to intervene in the case contesting the appointment of the former Alabama attorney general to that court.
On Thursday, they conceded that the Constitution does not prohibit the president from taking the action.
"The Constitution, on its face, does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President's appointment power under the Recess Appointments Clause," wrote Chief Judge James Larry Edmondson for the majority.
"For those who fear judicial recess appointments because the appointments bypass the Senate completely, we stress the obvious: the temporary judges lose their offices at the end of the Senate's next Session."
Kennedy released a statement voicing his disagreement with the court's decision.
"No previous president in all our history has ever taken such an extreme view of the Constitution on the appointment of federal judges," the senior senator from Massachusetts said in his statement. "I'm pleased, however, to see that all the judges on the Circuit agree that this important question is ready for the Supreme Court to resolve now, and I¹m hopeful that the Justices will agree to do so."
FOX News' Anna Persky contributed to this report.