Executive Session - Nomination Of William H. Pryor, Jr., To Be United States Circuit Judge For The Eleventh Circuit

EXECUTIVE SESSION -- (Senate - June 09, 2005)

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

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Mr. SCHUMER. Mr. President, I am here to speak on the nomination of William Pryor to the Eleventh Circuit. Bill Pryor's nomination is the last of the three covered by the deal worked out by 14 of our colleagues to avoid meltdown in the Senate.

Yesterday was the vote on Janice Rogers Brown. It was a sad vote. Not a single Republican Senator broke with his or her party to vote against a nominee whom even the National Review, George Will, and others singled out for her judicial activism and radicalism. It showed again that the other side is willing to march in almost total lockstep with the President. If they had their way, the Senate would be a complete rubberstamp for any nominee the President proposes--totally against what the Founding Fathers intended this Senate to be.

The count is 2,921 to 2. Out of almost 3,000 votes on appellate court nominees, 44 in all, only twice have Republican Senators dared to deviate from the party line. Is that the kind of independent thinking that an up-or-down vote entails? It is a sad day, indeed. For sure, Janice Rogers Brown's views do not mirror those of most of my colleagues or even come close.

In a moment, I will go through all the reasons I am opposed to Judge Pryor's nomination and all the things he said with which I strongly disagree. Here is one I agree with. In his testimony before the Senate in 1997, Judge Pryor told Senators, ``Your role of advice and consent in judicial nominees cannot be overstated.'' On this point, Judge Pryor and I see eye to eye.

As we await a slew of new nominations from the President, as we await the possible retirement of a Supreme Court Justice, and as we vote on the current nominees in the wake of an agreement that specifically urged President Bush to consult the Senate in advance of nominations, I again plead with the President and my colleagues to look to the future. Look to a future where harmony can replace acrimony in the Senate, where bipartisanship can replace one-upmanship, and where discourse can replace demagoguery. How can that be done? It is very simple. The President can, as he said he would in a recent press conference, consult meaningfully with Senators before trying to jam extreme nominees down our throats.

The renomination of Bill Pryor was the most breathtaking example of the President's ignoring checks and balances and bypassing the Senate's role in the nomination and confirmation process. The President stuck a thumb in the eye of bipartisanship when he renominated people like Janice Rogers Brown, Priscilla Owen, and Richard Myers after they were rejected by the Senate.

But the President did not get his way with William Pryor, and then he took the truly extraordinary step of making a recess appointment. While the renomination of rejected judges was a thumb in the eye to bipartisanship, the recent appointment of Bill Pryor was a punch in the face. This was particularly outrageous because not only is Bill Pryor one of the most ideologically driven nominees we have ever seen but also because there were questions about his credibility with the committee, and there was an unfinished investigation regarding the Republican Attorney General Association that he founded.

It is not enough for him or any other nominee to simply say: I will follow the law. His views are too well known. His record is clear about how he will vote as a judge. We all know that judging is not a rote process. We all know our own individual values and thoughts influence how we interpret the law. If it were just by rote, we would have computers on the bench instead of men and women in black robes. There is a degree of subjectivity, especially in close cases and controversies on hot-button issues. It is hard to believe that the incredibly strong ideological bent of this nominee will not have an impact on how he rules.

As my colleagues know, I have no litmus test when it comes to nominees. I am sure most of this President's judicial nominees have been pro-life, but I voted for so many of them because I have been persuaded they are committed to upholding the rule of law. I, for one, believe a judge can be pro-life and yet be fair and balanced and uphold the woman's right to choose. But for a judge to set aside his or her own personal views, the commitment to the rule of law must clearly supersede his or her personal agenda. That is a trick some can pull off. Not everybody can.

Let's take a moment to review some of the more radical remarks William Pryor has made and some of the more polemical positions he has taken. On criminal justice issues, I tend to be conservative. I tend to agree with most of my Republican colleagues. But there are lines which should not be crossed.

William Pryor defended his State's practice of handcuffing prisoners to hitching posts in the hot Alabama Sun for 7 hours without even giving them a drop of water to drink, and then he criticized the Supreme Court--hardly a liberal court--when it held this practice violated the eighth amendment ban on cruel and unusual punishment. We do have standards. We are not a medieval society, even for those of us who believe in tough punishment. What Pryor did, he goes far, too far, to say the least. In criticizing the Supreme Court's decision, he accused the Justices of applying their own subjective views on appropriate methods of prison discipline. The Supreme Court, which I believe was unanimous--or maybe 8 to 1--in rejecting William Pryor's view, was far more appropriate than he was.

He also called the Supreme Court's decision in Miranda--something that is part of judicially accepted law--one of the worst examples of judicial activism.

He has vigorously opposed the exemption of retarded defendants from being executed. He submitted an amicus brief to the Supreme Court in Atkins v. Virginia, and he argued that mentally retarded individuals should be subjected to the death penalty like anyone else.

When issues have been raised about the fair and just administration of punishment, particularly in some of these cases, Mr. Pryor's reaction has been to scoff.

When asked what steps Alabama would take to ensure that the death penalty was fairly applied--and I have supported the death penalty--regardless of the defendant's race, he said:

I would hate for us to judge the criminal justice system in a way where we excuse people from committing crimes because, well, we have imposed enough punishment on that group this year, and that's precisely what you are being asked to think of with that kind of analysis.

It is ridiculous. The analysis simply said, don't take race into account. This is a judge who will be fair and impartial and open to advocates' positions on both sides of an issue?

How about States rights? Mr. Pryor has been one of the staunchest advocates of efforts to roll back the clock, not just to the 1930s but to the 1890s. He is an ardent supporter of an activist Supreme Court agenda cutting back Congress's power to protect women, workers, consumers, the environment, and civil rights.

As Alabama's attorney general, Mr. Pryor filed the only amicus brief from among the 50 States. Only 1 attorney general out of all 50 filed a brief urging the Supreme Court to undo significant portions of the Violence Against Women Act. I am a proud author of that act. I carried the bill in the House when I was a Congressman. And to be so opposed to preventing women from being beaten by their husbands and taking remedies to deal with women who are so beaten makes no sense to me.

In commenting on that law, Pryor said:

One wonders why [VAWA] enjoys such political support, especially in the Congress.

One wonders why it enjoys such support when, for the first time, we in Washington, hailed by Republicans and Democrats, started trying to help women who were beaten by their husbands? When they used to go to certain police stations, they were told--not out of malice but out of ignorance--go home, it is a family matter; whose children had watched them be hit? And he cannot understand why it enjoys such political support? He is not the kind of man I want on the court of appeals.

How about child welfare? Bill Pryor's ardent support of States rights extends even to the realm of child welfare. At the same time he was conceding that Alabama had failed to fulfill the requirements of a Federal consent decree regarding the operation of a child's welfare system, he was demanding his State be let out of the deal.

On environment, we have more of the same concerns. Pryor was the lone attorney general to file an amicus brief arguing the Constitution does not give the Federal Government power to regulate interstate waters as a habitat for migratory concerns.

When it comes to disabilities, contrast Mr. Pryor's approach with the approach he took in Bush v. Gore. Bill Pryor was the lone State attorney general to file an amicus brief supporting the Supreme Court's intervention in Florida's election dispute. Every other attorney general, Democrat and Republican, had the sense to stay out of this dispute. Not Mr. Pryor.

Yet when it came to the ADA, the disabilities act, Mr. Pryor was the driving force behind the case in which a nurse contracted breast cancer, took time off to deal with her illness, and when she returned--in violation of the ADA--she found that she was demoted.

In conclusion, Mr. Pryor is extreme. Again, why is he, over and over again, 1 of the 50 attorneys general--there are a lot of conservative attorneys general--to file these briefs? Why is he, on things that are part of the mainstream of American feelings and jurisprudence--environment, Americans With Disabilities Act--way over?

Why did he say:

I will end with my prayer for the next administration. Please, God, no more Souters?

That is what he said before the Federalist Society, a Republican appointee to the bench. The man is clearly an ideologue. The man does not respect the rule of law in too many instances.

As I have said before, Bill Pryor is a proud and distinguished ideological warrior. But ideological warriors, whether from the left or from the right, are bad news for the bench. They tend to make law, not interpret law. That is not what any of us should want from our judges. Ideological warriors, whether from the left or the right, do not belong on courts of appeals.

I will suggest that you do not need to take my word for it. Here is what Grant Woods, the former attorney general of Arizona, and a conservative Republican, said of Mr. Pryor: While I would have great question of whether Mr. Pryor has an ability to be nonpartisan, I would say he was probably the most doctrinaire and partisan attorney general I have dealt with in 8 years. So I think people would be wise to question whether or not he is the right person to be nonpartisan on the bench.

I could not have said it better myself.

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