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Statement of Senator Edward M. Kennedy on Nomination of WIlliam H. Pryor, Jr. to United States Court of Appeals

Location: Washington, DC

I urge my colleagues to oppose Mr. Pryor's nomination. Contrary to the widespread impression of a partisan breakdown in the judicial nominations process, Democrats in this closely divided Senate have sought to cooperate with the President on the issues. And we've largely succeeded. We've confirmed 208 of President Bush's 218 nominees in the past four years. 95% of the nominees have been confirmed.

Only 10 nominees did not receive the broad bi-partisan support needed for confirmation, because their records showed they would roll back basic rights and protections.

Mr. Pryor's nomination illustrates the problems. His views are at the extreme right end of legal thinking. It's clear from his record that he doesn't deserve confirmation to a lifetime seat on an appellate court that often has the last word on vital issues for the millions of people who live in Alabama, Georgia, and Florida, the states that comprise the Eleventh Circuit.

Mr. Pryor is no true "conservative." He has sought to advance a radical agenda contrary to much of the Supreme Court's jurisprudence over the last forty years, and at odds with important precedents that have made our country more inclusive and fair over the past forty years.

Mr. Pryor has fought aggressively to undermine the power of Congress to protect civil and individual rights. He's tried to cut back on the Family and Medical Leave Act, the Americans with Disabilities Act, and the Clean Water Act. He's been contemptuously dismissive of claims of racial bias in the application of the death penalty, and has relentlessly advocated the use of the death penalty, even for persons with mental retardation. Mr. Pryor has even ridiculed the current Supreme Court justices, calling them "nine octogenarian lawyers who happen to sit on the Supreme Court. He even has his facts wrong. Only two of the nine justices are 80 years old or older.

In addition to these serious substantive concerns his nomination was rushed through the Committee in violation of Committee rules, before the Committee could complete its investigation of major ethical questions raised by the nominee's own testimony at his hearing and by his answers and non-answers to the committee's follow-up questions. When these serious problems in Mr. Pryor's record prevented him from receiving the Senate support needed for his confirmation, President Bush made an end-run around the constitutional system of checks and balances by giving him a recess appointment during a brief Senate recess that was, in all likelihood, an unconstitutional use of the recess appointment power.

In the last Congress, some members of the majority presented a version of the history of the nomination and the Committee's investigation which did not comport with the facts. That history is important, because it shows that Democrats have in fact acted expeditiously and responsibly, and that the rush to judgment in the committee in the last Congress was clearly an effort to cut off a needed further investigation.

As the extraordinary roll call vote in the Committee on July 23, 2003 shows, every member of the minority voted, "no, under protest for the violation of Rule IV."

Democrats did not invent the issue that provoked such an unprecedented protest. Years before Mr. Pryor's nomination, lengthy articles in Texas and D.C. newspapers raised the question of the propriety of the activities of the Republican Attorneys General Association.

It was reported that the organization sought campaign contributions to support the election of Republican attorneys general, by arguing they would be less aggressive than Democratic attorneys general in challenging business interests for violations of the law. Some descriptions of this effort characterized it as a "shakedown" scheme. The leaders of the Association denied the allegations, but refused to disclose its contributors. They were able to maintain their secrecy by funneling the contributions through an account at the Republican National Committee that aggregated various kinds of state campaign contributions, and avoided separate public reporting of the contributions or the amount of their gifts.

The issue received significant press coverage during the 2002 Senate campaign in Texas, especially after several Republican attorneys general denounced the Association as fraught with ethical problems.

Because Mr. Pryor had been identified publicly as a leader of the Association's efforts, and the ethical issues raised by it were obviously relevant to his qualifications, he was asked about the issue at his nomination hearing and in written follow-up questions. His responses avoided the issue and raised more questions than they answered.

In July 2003, the Committee began a bi-partisan investigation of the matter, in accordance with an investigative plan provided to the majority. Contrary to some of the assertions made during previous Committee meetings, no witnesses were ever questioned under oath as a part of the investigation, and in fact, the investigation was cut short by the Committee majority almost as soon as it began. The Republican investigator actually instructed interviewees that they did not have to answer questions from the minority investigator, or comply with document requests from the minority.

As a result, all of the Committee Democrats, having considered the information available up to that point, wrote to the Chairman and informed him that the investigation was producing serious and disturbing information, that it would require substantial additional time, that his investigators were interfering with it, and that after it was complete, the minority members would want to question the nominee under oath.

The Republican staff had offered informal staff interviews with the nominee before that time, but the Democratic investigators had, as any serious investigator would, declined that offer until the basic investigative work had been done. In any event, the Democratic members wanted to question the nominee in person under oath at the appropriate time.

At the Committee meeting to consider the issue, the Chairman rejected the minority's unanimous request out of hand. He insisted on a vote on the nomination without completion of the investigation and without further questioning of the nominee under oath. That was the situation when Senator Leahy invoked the Committee's Rule IV to prevent a premature vote on the nomination. Under rule IV, the party line vote was 10-9.

The fact that no minority member was among the ten should have prevented an immediate vote on the nomination and allowed the investigation to continue. But the Chairman refused to follow Rule IV and insisted on an immediate vote.

The nine Democrats on the Committee all voted against reporting the nomination, each noting an objection to the violation of Rule IV. The ten Republicans voted to report it, with one Republican stating that his vote to report it did not mean he would necessarily vote for the nominee on the floor. He also stated that he would want to review the results of the investigation with the nominee before any Senate vote.

Despite the lack of co-operation from the majority staff, the minority staff attempted to obtain further information, and did develop new information which expanded both the scope and the gravity of our original concerns. However, in the face of the majority's refusal to cooperate, a further investigation involving witnesses was impossible.

I mention this to make clear that the matters raised by this investigation are very serious, and we should not sweep these questions under the rug. We are not doing our job as a Committee if we look the other way in the face of these serious ethical questions. The Committee should have completed the investigation in 2003, reviewed its findings, heard from the nominee under oath, and then decided whether he should be listed for debate and consideration. The majority's recent offer of a few phone calls to witnesses whose telephone interviews were not completed or who could not be found in 2003, was appreciated, but was, as was obvious from the first call, too little and too late. The well of evidence had been poisoned by the majority investigator's negative statements to witnesses in 2003, and now it would take an even more concerted inquiry to elicit the full story from witnesses who were adverse to begin with. Nevertheless, because some day that story will probably come out, this aspect of the nomination remains a ticking ethical time bomb.

The rush to judgment on this nomination is particularly troubling, given the serious substantive problems in Mr. Pryor's record. His supporters say that his views have gained acceptance by the courts, and that his legal positions are well within the legal mainstream, but many disagree. Mr. Pryor has consistently advocated views to narrow individual rights far beyond what any court in this land has been willing to hold.

The Supreme Court rejected his argument that States could not be sued for money damages for violating the Family and Medical Leave Act. Had Mr. Pryor prevailed, it would have been far more difficult to protect workers who need time off because of their own health problems or to care for a loved one.

The Supreme Court also rejected Mr. Pryor's sweeping argument that Congress lacked authority to pass the Clean Water Act's protections for wetlands that are home to migratory birds.

The Court rejected his argument that states should be able to criminalize private sexual conduct between consenting adults. It rejected his far-reaching argument that counties should have the same immunity from lawsuits that states have. It rejected his argument that the right to counsel does not apply to defendants with suspended sentences of imprisonment. It rejected his argument that it was constitutional for Alabama prison guards to handcuff prisoners to "hitching posts" for hours in the summer heat.

Mr. Pryor's opposition to the rights of the disabled is particularly disturbing. In one case, in an opinion by Justice Scalia, the Supreme Court unanimously rejected his argument that the Americans with Disabilities Act doesn't apply to state prisons.

In another case, the Supreme Court rejected his view that section II of the ADA on state and local programs and services is unconstitutional. A plaintiff who used a wheelchair challenged the denial of access to a public courthouse. He had refused to crawl up the courthouse stairs to reach the public courtroom. In his brief in the case, Mr. Pryor argued that Congress had no power to require states to make public facilities accessible to the disabled. He argued that denying access to the courthouses doesn't violate the principle of equal protection, because the disabled have "no absolute right" to attend legal proceedings affecting their rights.

In arguing that the legislative history did not show a need for them to act, Mr. Pryor dismissed Congressional findings of discrimination against the disabled, and evidence that the University of Georgia had located its office of handicapped services in an inaccessible second-floor room. According to Mr. Pryor, such "anecdotes provide no indication of the extent of the inaccessibility, or whether the inaccessibility lacked a rational basis and was therefore unconstitutional." Contrary to his claim, it is obvious that the wording of this legislative history clearly describes the extent of the inaccessibility. There is no rational justification for a state university to put an office serving disabled students in an inaccessible second-floor location.

The Supreme Court also rejected Mr. Pryor's radical view of what constitute cruel and unusual punishment in the death penalty. It rejected his argument that executing retarded persons does not offend the Eighth Amendment. The Eleventh Circuit, a court dominated by conservative, Republican appointees, later unanimously rejected Mr. Pryor's attempt to evade the Supreme Court's decision. He had tried to prevent a prisoner with an IQ of 65 -- who even the prosecution agreed was mentally retarded -- from raising a claim that he should not be executed.

The Supreme Court also rejected his attempt to limit the right to counsel for the poor. Mr. Pryor argued that the poor have no right to counsel in misdemeanor cases, even if they risk imprisonment if found guilty. He told the Court during oral argument that it is reasonable only for the State to preserve its own resources, just as a more affluent defendant would preserve its resources and not incur the cost of counsel in this kind of circumstance. The Supreme Court held that the right to counsel when the accused faces possible imprisonment is more important than Mr. Pryor's financial concerns.

Again and again, his far-reaching arguments like these have been rejected by the Courts. Mr. Pryor is not a nominee within the legal mainstream.

He and his supporters pretend that he is only "following the law," but in fact Mr. Pryor repeatedly tried to make different law, using the Alabama Attorney General's office as a political platform for his own radical agenda.

We are expected to believe that despite the intensity with which he has advocated these radical legal positions and the many years he has devoted to dismantling basic rights, he will start to "follow the law" if he receives a lifetime appointment to the Eleventh Circuit. Repeating that mantra again and again in the face of his extreme record does not make it credible that he will do so.

His many intemperate, inflammatory statements show that he lacks the temperament to serve on the federal court. He ridiculed the Supreme Court of the United States for granting a temporary stay of execution in a capital punishment case. Alabama is one of only two states in the nation that uses the electric chair as its sole method of execution. The Supreme Court granted review to determine whether the use of the electric chair was cruel and unusual punishment.

For Mr. Pryor, however, the Court should not even have paused to consider the Eighth Amendment. He said the issue "should not be decided by nine octogenarian lawyers who happen to sit on the Supreme Court." This doesn't reflect the thoughtfulness we seek in our federal judges.

He is dismissive of concerns about fairness in capital punishment. He has stated: "make no mistake about it, the death penalty moratorium movement is headed by an activist minority with little concern for what is really going on in our criminal justice system."

In a 1997 statement to Congress, Mr. Pryor opposed Section 5 of the Voting Rights Act, which has been indispensable in ensuring that all Americans have the right to vote, regardless of race or ethnic background. He called this important law "an affront to federalism and an expensive burden that has far outlived its usefulness."

A little more than a month ago, we commemorated the fortieth anniversary of Bloody Sunday, in which Martin Luther King, Congressman John Lewis, and others were brutally attacked on a peaceful march in Mr. Pryor's home state of Alabama supporting the right to vote for all Americans regardless of race. Today we're being asked to confirm a nominee who opposes that Act based on a claim of federalism and states' rights.

The Supreme Court has repeatedly upheld the constitutionality of the Section 5, but Mr. Pryor's derisive statements -- criticizing both the Act and the Supreme Court itself -- give no confidence that he will enforce the law's protections. There's too much at stake to risk confirming a judge who would turn back progress on protecting the right to vote.

It's no surprise that this nomination is opposed by leaders of the civil rights movement, including the Reverend Fred Shuttlesworth, a leader of the Birmingham movement, the Reverend C.T. Vivian, and many of Dr. King's other close advisors and associates.

It's clear that Mr. Pryor sees the federal courts as a place to advance his political agenda. When President Bush was elected in 2000, Mr. Pryor gave a speech praising his election as the "last best hope for federalism." He ended his speech with these words -- a "prayer for the next administration: Please God, no more Souters."

In another speech, he said he was thankful for the Bush v. Gore decision, "I wanted Governor Bush to have a full appreciation of the judiciary and judicial selection so we can have no more appointments like Justice Souter."

Some have argued that Mr. Pryor's record in his year as a recess appointee on the Eleventh Circuit somehow erases his long career of opposition to basic rights. The fact that Mr. Pryor has voted with other judges during the period when he was temporarily appointed to the Court says nothing about what he would do if given a life-time appointment and the freedom from Senate oversight. It's no wonder that he might be cautious when he has only a temporary appointment to the court. We should not be swayed by "confirmation conversions," and especially not by "recess appointment conversions."

My colleagues on the other side have brought up every argument they could find to save him. His record is full of examples of extreme views, and they try to rebut each one. They call Senate Democrats and citizens who question Mr. Pryor's fitness -- including more than 204 local and national groups -- a variety of names, and accuse us of bias.

The claim that those who oppose Mr. Pryor's nomination do so because of his faith is ridiculous given his record, such a claim is unworthy of the Senate. Most of us would have had no idea what religious views are held by Pryor or other nominees if Republicans had not raised the issue.

The real question is why, when there are so many qualified Republican attorneys in Alabama, the President would choose such a divisive nominee? Why pick one whose record raises so much doubt as to whether he will be fair? Why pick one who can muster only a rating of partially unqualified from the American Bar Association?

At stake is the independence of our federal courts. We count on federal judges to be intelligent, to have the highest integrity, to be open-minded. Mr. Pryor is free to pursue his agenda as a lawyer or an advocate, but he does not have the open-mindedness and fairness needed to be a federal judge. I urge my colleagues to join in protesting any vote on this nomination, until we complete our investigation, and to oppose this nomination again if the Chairman calls for a vote.

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