The 11th U.S. Circuit Court of Appeals on Monday asked the U.S. Department of Justice to intervene in the civil rights case filed against the appointment of Bill Pryor to the appeals court.
President Bush made the appointment while the U.S. Senate was out of session, due to Democrats blocking a vote on some nominees.
Sen. Edward Kennedy, a Democrat from Massachusetts, and others are asking the court to rule that the appointment was unconstitutional.
President Bush appointed Pryor in February. The Constitution gives the president the right to appoint judges directly when Congress is not in session.
But Kennedy and others argue that right is only valid at the end of a Congress or the recess between annual sessions and not during short breaks.