ConfirmThem

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First, the fedster predicts that the Supremes will deny each of the three remaining cert. petitions challenging the constitutionality of Judge Pryor's recess appointment. Indeed, methinks our black-robed masters tipped their collective hand by: (1) refusing to expedite consideration of the issue; (2) denying cert. in Lofton v. Secretary, Florida Dept. of Children and Families (i.e., the Florida gay adoption case); and (3) granting cert. yesterday in Senn v. U.S., but remanding the case for reconsideration in light of the Court's Booker decision. What do the Lofton and Senn cases have in common? Well, in each case the Supreme Court declined to address the issue of whether Pryor's recess appointment is constitutional or refrain from ruling in those cases until such time as the issue had been resolved. As Lyle Denniston noted a while back over at the SCOTUS Blog:

The Lofton appeal had been closely watched, not only for signs of the Court?s view about gay rights in the wake of Lawrence, but also because it is potentially one of the most important case likely to be affected by the dispute over President Bush?s use of recess appointments to get controversial judges seated on federal courts. A recess appointee, Circuit Judge William H. Pryor, Jr., was on the Eleventh Circuit when the Lofton case came up on a request for a vote on en banc review in July. The full Circuit Court denied review by a 6-6 vote, with Pryor casting the sixth vote opposed to en banc review. A tie vote denies such review. Had Pryor been ineligible to vote, en banc review presumably would have been granted by a 6-5 vote. That perhaps still could be the case, if his recess appointment ultimately were found to be invalid.

Thus, the attorneys who filed the Lofton appeal asked the Supreme Court to avoid acting on their case until after it had resolved the continuing constitutional challenge over Pryor?s temporary appointment. By denying review outright, the Court on Monday appeared to ignore that suggestion.

The Court, in another of its orders on Monday, refused to expedite its consideration of the recess appointments question in the specific case in which the Eleventh Circuit rejected the challenge to Judge Pryor?s appointment. That action only involved the motion to expedite, and not the underlying appeal in Evans v. Stephens (04-828). The Court took no action on that petition, or on another that raises the issue ? Franklin v. U.S. (04-5858). There now are four petitions awaiting the Court?s attention on this question. It will likely be clear on Friday, however, whether the Court intends to tackle the question. The Justices have listed two of the petitions - Franklin and Miller v. U.S. (04-38) - for Conference this Friday, and if past practice holds the Court will issue its orders granting certiorari that day. The fourth case is Senn v. U.S. (04-7175), not yet scheduled for action; the government reply in that case is due today.

So, what are we to gather from all of this? Well, it seems to me extremely unlikely that the Court will grant cert. in one or all of the three remaining cases challenging the constitutionality of Pryor's recess appointment. Indeed, these cases have been scheduled for conference on numerous occasions, and the earliest possible time they will come up for consideration again is probably sometime in April [The Court announced yesterday that it will be in recess from March 7th until March 21st].

What all this strongly suggests to me is that one of the lefty judges is in the process of drafting a dissent from denial of cert. [Tom Goldstein seems to think this is a distinct possibility]. And who knows, maybe Scalia or Thomas is drafting a rejoinder as well. This is all speculation on my part, of course, but the foregoing scenario strikes me as highly probable. Think about it folks, if the Court hasn't decided whether to grant cert. in one of the remaining "Bush is the devil for giving Pryor a recess appointment!" cases, then why not wait to ding the Lofton cert. petition? Why the haste in remanding the Senn case for reconsideration? And why not expedite the issue? If the Court were planning on granting cert., then why wait to do so when every day that passes increases the number of decisions involving Pryor; decisions that will ultimately be challenged, in part, on that basis (assuming cert. is eventually granted in one of the cases challenging Pryor's recess appointment). Finally, it is worth noting that the Supreme Court's docket for this term is already full, and therefore if these cases are ever docketed and considered, Pryor's recess appointment will have long since expired. That does not mean, of course, the issue becomes moot; but allowing these cases to drag on makes little sense if the votes to grant cert. are there. To me, this leaves only one reason why the Court has failed to rule yet on these cases: there is/are opinion(s) being drafted/circulated to go along with the denial of cert. But that's just my opinion (read: speculation), I could be wrong. Any thoughts?

Second, the Pryor-haters are once again attempting to have it both ways with their criticism of his performance on the bench thus far. On the one hand they suggest Judge Pryor has been rendering "progressive" judicial opinions in hopes of being confirmed by the Senate, and on the other hand they rake him over the coals for his vote to deny rehearing en banc in Lofton (i.e., the gay adoption case from Florida). So which is it? If Pryor is really using each and every case that he participates in to enhance his prospects of being confirmed, then why not vote to grant rehearing in Lofton? Does anyone really believe Pryor failed to realize that voting to deny rehearing in that case would hurt his chances of being confirmed? So, why not just vote for rehearing, and then rule in favor of the state law prohibiting gay adoptions after being voted on by the Senate (assuming his term had not yet expired)? Could it possibly be that Pryor's so-called progressive opinions and vote in Lofton simply reflect his honest interpretation of the law in those cases? Nah, it couldn't be that, right?

(cross-posted at Southern Appeal)