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Published: Monday, 3/1/2004

No Pryor restraint

President Bush's recess appointment of William Pryor to the 11th U.S. Circuit Court of Appeals adds another dose of poison to the already toxic process of seating federal judges. Last week's action was wrong on two levels, involving the elevation of an unfit nominee as the result of a provocative maneuver.

This is the second time recently that Mr. Bush has taken advantage of the Senate being out of session to appoint a controversial judge; Charles Pickering, Sr., of Mississippi joined the 5th U.S. Circuit Court of Appeals on Jan. 16.

But Judge Pickering was not the worst of the handful of Mr. Bush's controversial nominees. That dubious distinction belonged to Judge Pryor, who was the attorney general of Alabama. He has been the champion of an extreme strain of federalism, which, under the guise of constitutional purity, would limit the rights of ordinary Americans in multiple areas of the law.

Among many reactionary stands, he filed a friend of the court brief in the Texas sodomy case before the U.S. Supreme Court, unsuccessfully seeking to support the notion - hostile to any sense of privacy - that police officers can come into people's bedrooms and arrest them for having sex. He has taken issue with provisions of the Voting Rights Act. Indeed, in his resistance to the reach of federal law, he has found himself siding against various victims of discrimination looking for justice.

Moreover, he is no supporter of the separation of church and state and infamously called the Roe vs. Wade decision an "abomination." As we have observed before, Judge Pryor is a "walking stereotype" of right-wing legal extremism. Unfortunately, that seems to be precisely why Mr. Bush nominated him in the first place and has now appointed him to overcome the roadblocks put up by Senate Democrats.

To be sure, the President's recess appointment was perfectly legal and not without precedent - after all, President Clinton did the same for Roger Gregory, who became the first African-American installed on the 4th U.S. Circuit Court of Appeals (although Judge Gregory subsequently won confirmation in the Senate after being renominated by President Bush).

But the appointment of Judge Pryor was an especially flagrant stroke in the ridiculous game of tit-for-tat played out over judicial appointments to the shame of both parties. Despite what the White House would have Americans believe, most of Mr. Bush's appointees have been treated with deference and respect; the recent elevation to the federal bench of former Pennsylvania Attorney General Mike Fisher is more typical. But unlike Judge Pryor, Judge Fisher has respect across party lines.

While Judge Pryor's appointment is only through 2005, the imperial arrogance of Mr. Bush in pressing forward with an unworthy nominee further politicizes a process in sore need of consensus. And by currying favor with the far right, Mr. Bush has given moderately inclined Americans another reason to reconsider his presidency.



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