Executive Session

EXECUTIVE SESSION

NOMINATION OF WILLIAM H. PRYOR, JR., TO BE UNITED STATES CIRCUIT JUDGE FOR THE ELEVENTH CIRCUIT

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Mr. CHAMBLISS. Mr. President, I rise today in support of the nomination of Judge William Pryor to the Eleventh Circuit Court of Appeals.

I would like to respond to the accusations by some of my colleagues concerning Bill Pryor's comments related to Section 5 of the Voting Rights Act. Judge Pryor has an outstanding record on civil rights and a demonstrated commitment to seeking equal justice for persons of all races.

Nevertheless, some of my colleagues on the other side have tried to characterize Bill Pryor as ``out of the mainstream'' because, as you have heard, he has called for the amendment of Section 5 of the Voting Rights Act.

Judge Pryor is not out of the mainstream on this issue, and I'll explain why.

After you hear who agrees with Judge Pryor on his reasoning here, I think you will agree with me that if Bill Pryor is ``out of the mainstream'' on his critiques of Section 5 of the Voting Rights Act, he's ``out there'' with some great Americans.

First, let me explain what Section 5 of the Voting Rights Act is about. Section 5 requires any ``covered States''--States that are subject to the Voting Rights Act--to pre-clear any decision to change ``any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting.''

The Supreme Court in Allen v. State Board of Elections has made it clear that the: legislative history on the whole supports the view that Congress intended to reach any State enactment which altered the election law of a covered State in even a minor way.

In practice, this means that Section 5 requires Federal officials at the Department of Justice to approve even very minor practices related to voting.

For example, if a State moved a polling place from one side of a street to another, this action would have to be pre-cleared by the Justice Department pursuant to Section 5.

Bill Pryor has called the Voting Rights Act ``one of the greatest and most necessary laws in American history,'' but he has taken to task Federal courts that have ``turned the Act on its head and wielded ..... power to deprive all voters of the right to select ..... public officers,'' even though the Act ``was passed to empower minority voters in the exercise of the franchise.''

As Alabama Attorney General, Bill Pryor was by no means alone in his criticisms of the Section 5 of the Voting Rights Act.

In a brief before the Supreme Court in the case of Georgia v. Ashcroft, Thurbert Baker, our State Attorney General in Georgia, who himself is a Democrat and African-American, called Section 5 an ``extraordinary transgression of the normal prerogatives of the states'' and ``a grave intrusion into the authority of the states.''

General Baker also stated that:

Section 5 was initially enacted as a ``temporary'' measure to last five years precisely because it was so intrusive.

Mr. President, I ask unanimous consent to have a copy of a letter that General Baker wrote back in 2003 to Senators SHELBY and SESSIONS of Alabama, in which General Baker describes Bill Pryor as ``an excellent candidate for a slot on the 11th Circuit Court of Appeals,'' printed in the RECORD.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

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Mr. CHAMBLISS. General Baker goes on in his letter to my colleagues from Alabama to say:

My only regret is that I will no longer have Bill as a fellow Attorney General fighting for what is right, but I know that his work on the bench will continue to serve as an example of how the public trust should be upheld.

Judge Pryor's concerns about Section 5 have been borne out in Georgia, where the State appealed to the Supreme Court in Georgia v. Ashcroft to have a recent redistricting plan approved following the 2000 decennial census, and after a Federal district court found that Georgia's plan violated Section 5.

During the litigation in the district court, Congressman John Lewis, a hero of the civil rights movement, testified on behalf of the State of Georgia in support of the plan, noting that Georgia: is not the same state it was. It's not the same state that it was in 1965 or in 1975, or even in 1980 or 1990. We have changed. We've come a great distance.

JOHN LEWIS knows that thoughtful review of Section 5 could be of some benefit.

According to the New York Times, Georgia's plan, pushed by both ``white and black Democrats,'' represented an attempt:

to reverse [a] trend in Georgia and elsewhere by redistributing some of the black voters and re-integrating suburban districts to gain a better chance of electing Democrats.

That is a quote from a New York Times article of January 18, 2003 at A12.

The New York Times further notes that Georgia currently has:

some safe Democratic districts with large black majorities, along with a sharply increased number of Republicans elected from suburban districts that had become increasingly white.

In his brief in Georgia v. Ashcroft, Georgia Attorney General Thurbert Baker cited his own election as an example of how African-American candidates can take ``the overwhelming majority of the total vote against their white opponents'' without the benefit of supermajority districts.

The Federal Government opposed Georgia's plan on the ground that Section 5 does not give Georgia the power to eliminate supermajority minority legislative districts, even in the name of increasing overall minority voting power.

Section 5 has not only placed a burden on covered States, but also on the Justice Department, which has wasted time by being forced to pre-clear a huge number of changes in voting practices that have nothing to do with minority voting rights.

Section 5 requires covered states to pre-clear any decision to change:

any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting.

Again, the Supreme Court has made it clear that the:

legislative history on the whole supports the view that Congress intended to reach any state enactment which altered the election law of a covered State in even a minor way.''

That statement is included in Allen v. State Board of Elections, 393 U.S. 544, 566.

For example, if a State moved a polling place from one side of a street to another, this action would have to be pre-cleared by the Justice Department pursuant to section 5, which indicates that ``any change in the boundaries of voting precincts or in the location of polling places'' requires pre-clearance.

Another great American, the late U.S. Supreme Court Justice Lewis Powell also criticized section 5 of the Act.

President Clinton has called Justice Powell ``one of our most thoughtful and conscientious judges'' and a Justice who reviewed cases ``without an ideological agenda.''

In 1973, in another case styled as Georgia v. United States, Justice Powell wrote in a dissenting opinion that:

It is indeed a serious intrusion, incompatible with the basic structure of our system, for federal authorities to compel a state to submit its [reapportionment] legislation for advance review [under section 5].

The most important point I would like to stress is that despite Mr. Pryor's well-documented concerns about Section 5 of the Voting Rights Act, he has vigorously enforced all provisions of the Act.

Let me give you two examples. First, when Alabama state legislator J.E. Turner died and the new candidate wanted to use stickers to place his name on the ballot, Attorney General Pryor issued an opinion stating that the use of stickers required pre-clearance under Section 5 of the Act. Certainly this illustrates that Bill Pryor was able to separate his personal disagreement with the requirements of Section 5 from his duty as Alabama's Attorney General to enforce the provision despite his personal views.

A second example involved Mr. Pryor's successful defense of several majority-minority voting districts, approved under Section 5, from a challenge by a group of white Alabama voters in the Sinkfield v. Kelley case. The voters, who were residents of various majority-white voting districts, sued the State of Alabama in Federal court, claiming that Alabama's voting districts were the product of unconstitutional racial gerrymandering.

The districts were created under a state plan whose acknowledged purpose was the maximization of the number of majority-minority districts in Alabama. Attorney General Pryor personally defended the majority-minority districts all the way to the U.S. Supreme Court, which held that the white voters could not sue because they did not reside in the majority-minority district and had not personally been denied equal treatment.

When some of these provisions of the Voting Rights Act are up for renewal, we should review and consider them in a very deliberative, bipartisan manner to make sure that the law today reflects the realities of our society here in the 21st Century.

Thurbert Baker and Bill Pryor, as attorneys general of two neighboring states in the South, know this to be the case one is African-American and one is white; one is a Democrat and the other is a Republican, but together they share a vision of making the voting rights laws of our country effective and enforceable in today's times.

To sum up, Bill Pryor has established an impressive record as a fair, diligent, and competent public servant. Two of my fellow Georgians, John Lewis and Thurbert Baker, have expressed concerns with Section 5 of the Voting Rights Act, just as Bill Pryor did and just as the late Justice Lewis Powell did.

This is not out-of-the-mainstream thinking; it's thoughtful and sincere analysis.

Even the liberal New York Times had to concede as much in its comments regarding Georgia's redistricting plan.

Bill Pryor's nomination to the Eleventh Circuit enjoys strong bipartisan support in his home State of Alabama, and in my home State, which is also part of the Eleventh Circuit.

A month ago, I visited with a number of my district court judges, all of whom said that in their contact with the Eleventh Circuit Court of Appeals, they had nothing but great things to say about the job Bill Pryor is doing as an interim appointee to the Eleventh Circuit. I urge my colleagues to vote in favor of his confirmation today.

Eleventh Circuit. I urge my colleagues to vote in favor of his confirmation today.

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