Challenges to Judge Pryor
on Feb 10, 2005 at 8:03 am
There are at least four petitions for certiorari challenging the constitutionality of Judge Pryor’s recess appointment to the Eleventh Circuit. It has been hard to decipher what the Supreme Court intends to do, as the Justices have relisted the petitions for further consideration in a pattern that doesn’t follow their past practice. The best guess is that the Court has been waiting for the briefing to be complete in our petition in No. 04-828, Evans v. Stephens. We infer that from the fact that Evans is now slated for Conference on February 18, and all the other petitions have now been relisted for consideration with it. It seems unlikely that the Justices have definitively decided to deny cert. — at least without recorded dissent — because they could have gone ahead and denied the previously filed petitions: Nos. 04-38, 04-5858, and 04-7175.
One other fact bears noting. Our reply brief in the Evans case explains that we expect yet another petition to be filed soon. That petition would implicate neither of the objections that the government has raised to the posture of the previous petitions. Unlike Evans, the case will have been finally decided by the court of appeals. And unlike the other pending petitions, the petitioner will have moved in the court of appeals to remove Judge Pryor. We’ll have to see if that makes a difference to the Court.
