In Evans v. Stephens, No. 02-16424 (11th Cir. Oct. 14, 2004) (en banc), the Eleventh Circuit held that the President did not exceed his constitutional authority, under the recess appointment clause, to appoint Judge Pryor to the Eleventh Circuit without the consent of the Senate and concluded that "Judge Pryor may sit with this Court lawfully and act with all the powers of a United States Circuit Courtduring his term of office." In arriving at that conclusion, the Court held that: 1) the President has the authority to make recess appointments to Article III courts; 2) the recess of the Senate, as used in the recess appointment clause, includes an intra-session recess (here, a ten-day President's Day recess); and 3) the vacancy to be filled need not arise during the particular recess in order to be filled. Judge Barkett filed a long and scholarly dissent arguing that the recess appointment clause only authorizes the President to fill vacancies that arise during a recess and that the appointment must be made during that same recess. Although Judge Barkett would not reach the issue, she opines that the recess appointment clause only applies to inter-session recesses.["The President shall have Power to fill up all Vacancies that may happen duringthe Recess of the Senate." U.S. Const., art. II, § 2, cl.3]
