Burbank, Stephen, Judicature
A portion of the program presented by the Judicial Independence and Accountability Task Force that does not appear in the edited transcript concerned recess appointments of federal judges, which is one of the seven issues that the task force is currently monitoring. Former Chief Judge of the United States Court of Appeals for the Third Circuit and Task Force member John Gibbons presented a fascinating historical and analytical account of the President's power under Article II, section 2 of the Constitution "to fill up all Vacancies that may happen during the recess of the Senate, by granting Commissions which shall expire at the End of their next Session."
Mindful that the issue is of contemporary interest largely because of challenges to President George W. Bush's February 2004 appointment, during an 11 -day intrasession Senate recess, of William Pryor to the United States Court of Appeals for the Eleventh Circuit, Gibbons gave great weight both to historical practice and to the delicacy of deciding questions that might be thought committed to the other branches of government. He noted in this regard that the challenges to Judge Pryor's recess appointment were spearheaded, in the capacity of amicus curiae, by Senator Edward Kennedy, who had participated in the filibuster as a result of which Pryor failed to win Senate consent when previously nominated by President Bush. …