On The Nomination Of William Pryor To The U.S. Court Of Appeals For The Eleventh Circuit

Closing Statement Of Senator Patrick Leahy,
Ranking Member, Judiciary Committee,
On The Nomination Of William Pryor To The U.S. Court Of Appeals For The Eleventh Circuit
June 9, 2005

In the last Congress, following one of the most divisive debates I have seen on the floor of the Senate, I explained why I felt strongly about voting against the nomination of William Pryor to the U.S. Court of Appeals for the Eleventh Circuit - in Committee and in two unsuccessful cloture attempts. The President disregarded the advice given to him by the Senators opposing this nomination, and he installed Mr. Pryor as a recess-appointed judge on the Eleventh Circuit where he will serve until the end of this year. Today, because the President continues to insist on pushing his most divisive nominees in a group that he renominated to the Senate, we are here voting yet one more time on this nomination.

I expect some will try to point to the few cases he has worked on during his time "auditioning" on the Circuit Court as evidence that he should be confirmed. But nothing Judge Pryor has done in the intervening period has changed my view that based on his entire career and record, if he were to receive life tenure on the federal bench, he would put ideology above the law. I cannot support him.

Inflammatory Rhetoric

In the course of their march toward the "nuclear option" - a development thankfully averted - the President and the Republican leadership escalated the rhetoric surrounding this issue in alarming ways. The Majority Leader last month participated in a telecast smearing opponents of the most extreme judicial nominees as "against people of faith." Arrayed behind the podium at that gathering were photos of the filibustered nominees, and speaker after speaker accused Democrats of opposing nominees such as Judge Pryor because of his faith. These are baseless and despicable accusations, and it is time the Republican leadership and other Republicans in and out of the Senate disavow them.

Senate Democrats do not oppose William Pryor because of his faith. We oppose the nomination of William Pryor to the Eleventh Circuit because of his extreme - some, with good reason, use the word "radical" - ideas about what the Constitution says about federalism, criminal justice and the death penalty, violence against women, the Americans with Disabilities Act, and the government's ability to protect the environment on behalf of the American people. Of course, those substantive concerns will not do much to advance Republicans' political ambitions and the agendas of polarizing interest groups. So some Republican partisans are putting the truth to one side. They dismiss the views of Democratic Senators doing their duty under the Constitution to examine the fitness of every nominee to a lifetime position on the federal bench and choose, instead, to use smears and accusations.

The last time Judge Pryor came before this Committee and the Senate, slanderous accusations were made by Republican Senators, and scurrilous newspaper advertisements were run by a group headed by the President's father's former White House counsel and a group whose funding includes money raised by Republican Senators and even by the President's family. Other Republican members of the Judiciary Committee and of the Senate stood mute in the face of these McCarthyite charges, or, worse, fed the flames. Now, the same type of rhetoric - identifying opponents as against faith - has again reared its ugly head.

This kind of religious smear campaign hurts the whole country. It hurts Christians and non-Christians. It hurts all of us, because the Constitution requires judges to apply the law, not their personal views. Remember that all of us, no matter what our faith -- and I am proud of mine -- are able to practice our religion as we choose or not to practice a religion. That is a fundamental guarantee of our Constitution. The Constitution's prohibition against a "religious test" in Article VI is consistent with that fundamental freedom. I hope that Republican Senators will debate this nomination absent the scurrilous charges that marked it the past and the discourse during the "nuclear option" last month.

An Extreme and Divisive Nomination

Instead, the Senate's debate should center on the nominee's qualifications for this lifetime post in the federal judiciary. There is an abundance of substantive and compelling reasons why William Pryor should not be a judge on the Eleventh Circuit. Opposition to Judge Pryor's nomination is shared by a wide spectrum of objective observers. Judge Pryor's record is so out of the mainstream that a vast number of editorial boards and others have weighed in with significant opposition.

Even The Washington Post, which has been exceedingly generous to the Administration's efforts to pack the courts, has termed Judge Pryor "unfit" and consistently opposed his nomination. In Alabama, both the Tuscaloosa News and the Hunstville Times wrote against the nomination. Other editorial boards across the country have spoken out, including the Atlanta Journal-Constitution, the Pittsburgh Post-Gazette, The New York Times, the Charleston Gazette, the Arizona Daily Star, and The Los Angeles Times.

We have also heard from a large number of organizations and individuals concerned about justice before the federal courts. The Log Cabin Republicans, the Leadership Conference on Civil Rights, the AFL-CIO, the National Partnership for Women and Families and many others have provided the Committee with their concerns and the basis for their opposition. We have received letters of opposition from organizations that rarely take positions on nominations but feel so strongly about this one that they are compelled to publicly oppose it, including the National Senior Citizens' Law Center, the Anti-Defamation League and the Sierra Club.

The ABA's evaluation also indicates concern about this nomination. Their Standing Committee on the Federal Judiciary gave Mr. Pryor a partial rating of "not qualified" to sit on the federal bench. Of course this is not the first "not qualified" rating or partial "not qualified" rating that this Administration's judicial nominees have received. More than two dozen of President Bush's nominees have received indications of concerns about their qualifications from the ABA's peer reviews, which have been less exacting and much more accommodating to this Administration than to previous ones. I would note that this softer treatment follows the changes in the process imposed by the Bush Administration.

Activist and Crusader

Judge Pryor has long been a leader of the federalist movement, promoting state power over the federal government. A leading proponent of what he refers to as the "federalism revolution," Judge Pryor seeks to revitalize state power at the expense of federal protections, seeking opportunities to attack federal laws and programs designed to guarantee civil rights protections. He has urged that federal laws on behalf of the disabled, the aged, women, minorities, and the environment all be limited. Not long ago, in a New York Times Magazine article about the so-called "Constitution-in-Exile" movement, Michael Greve, was quoted as saying, "Bill Pryor is the key to this puzzle; there's nobody like him. I think he's sensational. He gets almost all of it." William Pryor's ideological crusading, at the expense of ordinary Americans, is precisely why he should not be confirmed.

Limiting Worker and Environmental Protections

William Pryor has argued that the federal courts should cut back on the protections of important and well-supported federal laws including the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Civil Rights Act of 1964, the Clean Water Act, the Violence Against Women Act, and the Family and Medical Leave Act. He has repudiated decades of legal precedents that permitted individuals to sue states to prevent violations of federal civil rights regulations. His aggressive involvement in this "federalist revolution" shows that he is a goal-oriented, activist conservative who has used his official position to advance his "cause." Alabama was the only state to file an amicus brief arguing that Congress lacked authority to enforce the Clean Water Act. He argued that the Constitution's Commerce Clause does not grant the federal government authority to prevent destruction of waters and wetlands that serve as a critical habitat for migratory birds. The Supreme Court did not adopt his narrow view of the Commerce Clause powers of Congress. While his advocacy in this case is a sign to most people of the extremism, he trumpets his involvement in this case. He is unabashedly proud of his repeated work to limit congressional authority to promote the health, safety and welfare of all Americans.

His passion is not some obscure legal theory but a legal crusade that has driven his actions since he was a student and something that guides his actions as a lawyer. His speeches and testimony before Congress demonstrate just how rooted his views are, how much he seeks to effect a fundamental change in the country, and how far outside the mainstream he is.

Judge Pryor is candid about the fact that his view of federalism is different from the current operation of the federal government - and that he is on a mission to change the government to fit his vision. His goal is to continue to limit Congress's authority to enact laws under the Fourteenth Amendment and the Commerce Clause - laws that protect women, ethnic and racial minorities, senior citizens, the disabled, and the environment - in the name of sovereign immunity. Is there any question that he will pursue his agenda as a judge on the Eleventh Circuit Court of Appeals - reversing equal rights progress and affecting the lives of millions of Americans for decades to come?

Judge Pryor=s comments have revealed insensitivity to the barriers that disadvantaged persons and members of minority groups and women continue to face in the criminal justice system. This is what is at stake for Americans, the consumers of our justice system. This is the type of judge this President and this Republican leadership are intent on permanently installing in our justice system.

Attacking the Voting Rights Act and Other Key Rights

In testimony before Congress, William Pryor has urged repeal of Section 5 of the Voting Rights Act - the centerpiece of that landmark statute - because, he says, it "is an affront to federalism and an expensive burden that has far outlived its usefulness." That testimony demonstrates that Judge Pryor is more concerned with preventing an "affront" to the states' dignity than with guaranteeing all citizens the right to cast an equal vote. It also reflects a long-discredited view of the Voting Rights Act. Since the enactment of the statute in 1965, every Supreme Court case to address the question has rejected the claim that Section 5 is an "affront" to our system of federalism. Whether under Earl Warren, Warren Burger, or William Rehnquist, the United States Supreme Court has recognized that guaranteeing all citizens the right to cast an equal vote is essential to our democracy - not a "burden" that has "outlived its usefulness."

His strong views against providing counsel and fair procedures for death row inmates have led William Pryor to doomsday predictions about the modest reforms in the Innocence Protection Act that would create a system to ensure competent counsel in death penalty cases. When the United States Supreme Court questioned the constitutionality of Alabama=s method of execution in 2000, William Pryor lashed out at the Supreme Court, saying: A[T]his issue should not be decided by nine octogenarian lawyers who happen to sit on the U.S. Supreme Court." Aside from the obvious disrespect this comment shows for the Nation's highest court, it shows again how results-oriented Judge Pryor is in his approach to the law and to the Constitution. Of course an issue about cruel and unusual punishment ought to be decided by the Supreme Court. It is addressed in the Eighth Amendment, and whether or not we agree on the ruling, it is an elementary principle of constitutional law that it be decided by the Supreme Court, no matter how old its members.

Judge Pryor has also vigorously opposed an exemption for persons with mental retardation from receiving the death penalty, exhibiting more certainty than understanding or sober reflection. He authored an amicus curiae brief to the Supreme Court arguing that the Court should not declare that executing mentally retarded persons violated the Eighth Amendment. After losing on that issue, Judge Pryor made an unsuccessful argument to the Eleventh Circuit that an Alabama death-row defendant is not mentally retarded.

Judge Pryor has spoken harshly about the moratorium imposed by former Illinois Governor George Ryan, calling it a "spectacle." Can someone so dismissive of evidence that challenges his views be expected to hear these cases fairly? Over the last few years, many prominent Americans have begun raising concerns about the death penalty and the close calls endured by innocent Americans condemned to death row. Those raising these concerns include current and former supporters of capital punishment. For example, Justice O'Connor recently said there were "serious questions" about whether the death penalty is fairly administered in the United States, and added: "[T]he system may well be allowing some innocent defendants to be executed." In response to this uncertainty, Judge Pryor offers us nothing but his obstinate view that there is no problem with the application of the death penalty. This is a position that is not likely to afford a fair hearing to a defendant on death row.

Judge Pryor's troubling views on the criminal justice system are not limited to capital punishment. He has advocated that counsel need not be provided to indigent defendants charged with an offense that carries a sentence of imprisonment if the offense is classified as a misdemeanor. The Supreme Court nonetheless ruled that it was a violation of the Sixth Amendment to impose a sentence that included a possibility of imprisonment if indigent persons were not afforded counsel.

Judge Pryor is overwhelmingly hostile to a woman's right to choose. There is every indication from his record and statements that he is committed to reversing Roe v. Wade. Judge Pryor describes the Supreme Court's decision in Roe v. Wade as the creation "out of thin air [of] a constitutional right," and opposes abortion even in cases of rape or incest.

Judge Pryor does not believe Roe is sound law, neither does he give credence to Planned Parenthood v. Casey. He has said that "Roe is not constitutional law," and that in Casey, "the court preserved the worst abomination of constitutional law in our history." When Judge Pryor appeared before the Committee, he repeated the mantra suggested by White House coaches that he would "follow the law." But his willingness to circumvent established Supreme Court precedent that protects fundamental privacy rights seems much more likely.

Judge Pryor has expressed his opposition to fair treatment of all people regardless of their sexual orientation. The positions he took in a brief he filed in the Supreme Court case of Lawrence v. Texas were entirely repudiated by the Supreme Court majority two years ago when it declared that: "The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private conduct a crime." Judge Pryor's view is the opposite. He would deny certain Americans the equal protection of the laws, and would subject the most private of their behaviors to public regulation.

Capping Judge Pryor's record of extreme activism were sworn statements made by former Alabama Governor Fob James and his son, both Republicans, explaining that Judge Pryor was only chosen by James to be the state's Attorney General after promising that he would defy court orders, up through and including orders of the Supreme Court of the United States. In sworn affidavits, Governor James and his son recount how William Pryor persuaded them he was right for the job by showing them research papers he had supervised in law school about "nonacquiesence" to court orders. Indeed, under penalty of perjury, the former Republican Governor and his son say that Judge Pryor's position on defying court orders changed only when he decided he wanted to be a federal judge.

If true, this information, consistent with the activism and extremism present elsewhere in Judge Pryor's record, is revealing. To think that this man would come before the Senate after having made a promise like that - to undermine the very basis of our legal system - and ask to be confirmed to a lifetime position on the federal bench, is beyond belief.

Driven by Politics

Indeed, William Pryor's activism has often transcended judicial philosophy and entered the realm of pure partisan politics to the point where it appeared political concerns openly affected his legal views. As Attorney General of Alabama, Pryor was one of the founders of the Republican Attorneys General Association, or RAGA, an organization which raised money from corporations for Republican candidates for state Attorney General positions. Before RAGA was founded, Attorney General candidates usually shied away from corporate fundraising because of the potential for conflicts of interest with an Attorney General's duty to go after any corporate wrongdoing.

But William Pryor not only ignored the tradition of keeping Attorney General's races above politics, he embraced with both hands the mixing of law and politics. He spoke out, vocally and often, against state attorneys general bringing aggressive cases against the tobacco industry, the gun industry, and other corporate interests. And then RAGA, William Pryor's organization, raised money for attorney general campaigns from these very industries and others like them that hoped to avoid lawsuits and prosecution. His philosophy of opposing mainstream government regulation of corporations advanced his politics and his organization's fundraising, and his political interests in turn informed his pro-corporation legal philosophy. Curiously, when asked about RAGA at his hearing, Mr. Pryor could remember very little about the organization or his role in it.

His partisan, political worldview colors the way he thinks about the role of the courts as well. He ended one speech with the prayer, "Please God, no more Souters!" - a slap at a Supreme Court Justice seen by some as insufficiently conservative. And he said he was pleased the Court's vote in Bush v. Gore was a 5-4 split because that vote would give President Bush "a full appreciation of the judiciary and judicial selection;" in other words, it would show the president that he needed to appoint partisan conservatives to the bench. These are the sentiments of an activist and a politician. They are not the considered deliberations that all of us, as Republican or Democratic Senators, would expect from an impartial judge.

A Lifetime Record of Activism

On a full slate of issues -- the environment, voting rights, women's rights, gay rights, federalism, and more -- William Pryor's record of activism and advocacy is clear. That is his right as an American citizen, but it does not make him qualified to be a judge. As a judge, it is his duty impartially to hear and weigh the evidence and to impart just and fair decisions to all who come before the court. In their hands, we entrust to the judges in our independent federal judiciary the rights that all of us are entitled to enjoy through our birthright as Americans.

Judge Pryor's time on the Eleventh Circuit brings out the very problem with recess appointments of controversial judges. The Constitution sets out that Article III judges receive lifetime appointments precisely so that they can be independent. Judge Pryor, in contrast, cannot be independent during the pendency of his recess appointment because he is dependent on the Senate for confirmation to a lifetime position. He is, in essence, trying out for the job. Accordingly, the opinions he writes while temporarily on the court are not much of a predictor for what he would do if he did receive a lifetime appointment and became truly independent.

What is a good predictor for what he would do as a permanent Eleventh Circuit judge? Quite simply, his actions and statements in the many years of his professional life before he was appointed provide the best insight. And these actions and statements paint a clear and consistent picture of a judicial activist whose extreme views place him far outside the mainstream. A year of self-serving restraint does little to alter this picture.

The President has said he is against what he calls "judicial activism." How ironic, then, that he has chosen several of the most committed and opinionated judicial activists ever to be nominated to our courts.

The question posed by this controversial nomination is not whether Judge Pryor is a skilled and capable politician and advocate. He certainly is. The question is whether -- not for a two-year term but for a lifetime -- he would be a fair and impartial judge. Could every person whose rights or whose life, liberty or livelihood were at issue before his court, have faith in being fairly heard? Could every person rightly have faith in receiving a just verdict, a verdict not swayed by or yoked to the legal philosophy of a self-described legal crusader? To see Judge Pryor's record and his extreme views about the law is to see the stark answer to that question.

I oppose giving Judge Pryor a lifetime appointment to the Eleventh Circuit where he can impose his radical activist vision on the many people whose lives and disputes come before him. The President has chosen to divide the Senate and the American people with this and other nominations. I believe the President owes the American people a nominee who can unite the American people by showing that he or she is committed to fairly applying the law and not to pursuing an ideological crusade.

http://leahy.senate.gov/press/200506/060905b.html