When it comes to nominating federal judges, the Constitution is quite clear. For the nomination process, it says the President "shall have Power, by and with the Advice and Consent of the Senate". A normal person would take this to mean that the President nominates the judges. The Senate role is secondary in that they provide advice and/or approval of the nominations. However, according to Ted Kennedy and other democrats, this means that the Senate has the power to keep appointments tied up in permanent debate. If the Senate refuses to vote, or cannot reach a 60 vote majority to suspend debate, the appointment process grinds to a halt. In Teddy Kennedy's mind, this is perfectly fine.

But the Constitution also says something else. It gives the President the "Power 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." President Bush recently took advantage of this provision by appointing Judge William Pryor while the Senate was in recess. Kennedy is fighting the appointment -- in court.

"The Recess Appointments Clause ... authorizes the president to act in an exceptional manner when Congress's absence prevents it from performing its constitutional functions. It should therefore be construed to apply narrowly to an actual inter-session 'recess,'" Kennedy's lawyers wrote.

"Otherwise, the president will be able to aggrandize his power at the expense of the Senate by invoking an exceptional power - conferred upon him only for the rare situations in which the Senate cannot give advice and consent - and using it during brief Senate adjournments in which there is no such emergency need," the request argues.

A little over a year ago, Senate Judiciary Committee member Chuck Schumer aggradized his power by suggesting that if the President didn't like the Democrat's obstruction tactics, he should abdicate his power to make judicial appointments directly to the Senate.

Schumer suggested setting up bipartisan nomination commissions in each state that would recommend a judicial candidate to the president for each empty judgeship. "It's our best hope for breaking the vicious cycle," Schumer said.

Maybe Bush should have sued him.