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Battle over recess appointments

High court may rule on the legality of President Bush's use of the controversial tactic to fill judicial vacancies.

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In the looming battle over President Bush's judicial nominations, much has been said about using the so-called nuclear option to by-pass Democratic filibusters.

But the president has an alternative weapon, one that empowers him to place conservative nominees on the bench immediately, regardless of efforts by Senate opponents. Mr. Bush could simply use his authority to make recess appointments to fill judicial vacancies - including, if necessary, at the US Supreme Court.

It's a tactic that some legal analysts say is appropriate when a minority of senators attempts to use a filibuster to block an up or down Senate vote on a nominee. Others say the move amounts to an unconstitutional power grab by the White House by circumventing the Senate's "advice and consent" role in judicial nominations.

Now, on the eve of an anticipated no-holds-barred showdown over the future composition of America's courts, the US Supreme Court is being asked to determine what limits, if any, apply to the president's recess appointment power. The court is considering taking up four different cases, each challenging Bush's recess appointment last February of William Pryor to a federal appeals court in Atlanta. A decision by the court on whether to hear the issue could come as early as January.

Opponents of the president's efforts to install conservative judges say the case could prove critical. "At this rare moment in history, the rightwing of the Republican Party controls the House, the Senate, the White House, and is very close to controlling the Supreme Court," says Ralph Neas, president of the liberal advocacy group People for the American Way. "There are only three checks and balances [left] in the federal system: the filibuster, Sandra Day O'Connor, and Anthony Kennedy."

The recess-appointment issue is important because it is expected to set the stage for the battle between Senate Democrats and the White House over judicial nominations in general and Supreme Court vacancies in particular. If Democratic senators seek to filibuster a Supreme Court nominee, some analysts suggest the White House could respond by placing the nominee immediately on the high court - for up to two years - through a recess appointment.

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