Why not just the left but some on the right oppose this possible nominee to the U.S. Supreme Court
Nonsense can come from both ends of the political spectrum.
As Senate Democrats and left-wing organizations flailingly tried this week to show that Alabama’s U.S. Sen. Jeff Sessions is too conservative to be U.S. Attorney General, some conservative groups have been fulminating that Sessions’s protégé, 11th U.S. Circuit Court of Appeals Judge William Pryor, is too liberal.
Both sides are acting as if a person’s policy preferences are coterminous with his approach to exercising duties in the legal system. That, of course, is a mistake liberals often make, because it fits the “progressive” belief that everything, especially everything personal, is political. But conservatives ought to know better.
But as the incoming Trump administration reportedly considers Pryor among its finalists for a Supreme Court spot, the Left’s expected poisoned arrows from the front are being supplemented by right-wing knives in Pryor’s back. Yet, if approached with intellectual integrity, the Left’s concerns are neutered, and the right-wing attacks shown as utterly meritless, by the same set of considerations.
(This is not to impugn the motives of the rightist attackers but only their frames of reference and their conclusions.)
The right-wingers’ putative case against Pryor — one strongly rejected by the vast majority of conservative legal eminences — has two main thrusts. First, they say that three court decisions this decade show that Pryor will serve as “a strong ally of the homosexual lobby.” Second, they still resent the key role Pryor played in the 2003 removal from office, on ethics charges, of Alabama Supreme Court Chief Justice Roy Moore.
The first allegation is either paranoia or slander. The second is evidence of a sincere but unfortunate misapprehension. Both accusations stem from a misunderstanding of the proper roles of officials in our court system. (My explication of the Moore situation will appear here at The American Spectator on Monday.)
The “homosexual lobby” charge — something different, by the way, from being merely inclined to fair and decent treatment of homosexuals, which is a moral obligation — is based on the 11th Circuit decisions in the 2011 cases of Glenn v. Brumby and Keeton v Anderson-Wiley and the late 2016 case of Carver Middle School Gay-Straight Alliance v. School Board of Lake County, Florida. In all three, Pryor joined decisions whose result was favored by homosexual activists — despite Pryor’s previous record of taking positions in “gay rights” controversies that coincided with the wishes of the most devout cultural conservatives.
In all three, however, Pryor persuasively contended that he was, in one way or another, bound by existing court precedent or by a close reading of statutory language — and in all three he tried to keep the decision to narrow grounds. This latter consideration is crucial: In School Board of Lake County, for example, the decision was narrowly tailored to address whether the case was legally “ripe” and legally “moot” and to address a confusion in Florida law between the terms “secondary school” and “secondary education.” Nowhere did Pryor and his fellow judges rule on the ultimate merits of the case nor make some momentous decision expanding special privileges for the “gay-straight alliance.” Instead, they merely ruled that the case could move forward so a district court could rule on the merits and on whether any legal “relief” was appropriate.
These are procedural issues; they are neither indications of moral judgment nor even expositions of sweeping constitutional theory. The decisions on those issues are not “pro-gay” or “anti-gay.” They are merely intermediate determinations that a party to a specific suit has a legally recognizable case or controversy to argue.
In the Brumby case, meanwhile, the defendant openly stated that he fired an otherwise competent employee, from a public-sector job no less, specifically because the employee was undergoing a sex-change procedure. The supervisor claimed no performance-based reason for the firing. The judgment (not written by Pryor but joined by him) was particularly heavy in citations from the Supreme Court and other appellate courts that made clear the 11th Circuit had little room to find anything other than that illegal sex discrimination was involved. Subsequent Supreme Court cases (on semi-related legal issues) have further bolstered the panel’s judgment.
Finally, the Keeton case admittedly might be seen — out of context — as problematic. I myself am not convinced by the decision, which involved a college student dismissed from a graduate program in school counseling because she refused to stop “imposing” her anti-homosexual beliefs on her clients. (I think she arguably had a legitimate cause of action.) But two items are worth noting. First, the traditionalist-Christian plaintiff, Keeton, was asking for a preliminary injunction — a higher standard to meet than a decision on the ultimate merits. Second, Pryor took care to add a concurrence re-emphasizing the point that while the court found Keeton had not yet proved that she had been the victim of “viewpoint discrimination,” the constitutional protection against such discrimination against her Christian viewpoints is strong and serious and should not be dismissed lightly.
In other words, even as Judge Pryor ruled that the specific record at hand did not support Ms. Keeton’s specific argument, he stressed both the importance of judicial restraint and of the general right of people to be free from coercive limits on their expression of traditionalist beliefs.
It is instructive that at the same time Pryor’s right-wing critics are accusing him of being too pro-gay, left-wing websites like “Heavy” are in full-throated attack on him for supposedly being “in favor of criminalizing gay sex,” for “supporting a law preventing LGBT parents from adopting,” and for “support[ing] an opinion forbidding anti-transgender discrimination.” He also came under fire for deciding not to take his young daughters to Disney World when their family vacation coincided with the amusement park’s official “Gay Day.”
So which is it? Is Pryor an anti-gay bigot or a pro-gay despoiler of all traditional morality?
Of course he’s neither. He was a state attorney general and is a judge who applies the Constitution and laws, as written and as he can best interpret them according to neutral criteria, to particular facts in particular cases. He doesn’t have a policy agenda. His goal is not to reach certain, predetermined “results.” (Suffice it to say, by the way, that Pryor’s actions in those various “anti-gay” cases evinced no anti-homosexual animus but merely his usual close application of existing law to the facts at hand. He does not legislate; he adjudicates.)
Perhaps in complicated, close cases, Pryor’s application of laws to facts may not match those of some conservatives. So what? The late Justice Antonin Scalia and Justice Clarence Thomas disagreed on plenty of cases, too, but that disagreement made neither of them any less a judicial textualist/originalist. (For an example of Pryor’s careful, conservative jurisprudence, see his work in favor of religious liberty in the EWTN case.)
In every case at hand, Pryor adjudicates, and writes, with extremely careful attention to the relevant texts; with a subtle appreciation for the deference judges owe other branches in some circumstances and the obligation judges have to vindicate clear constitutional rights when they are transgressed; and the determination to know how to make those crucial distinctions between due deference and assertive protections.
Alas, some of Pryor’s erstwhile (and sincere) conservative critics accuse him of being too much of a “judicial supremacist,” because he insists that the injunctions of higher courts are binding on lower courts within their jurisdiction. (Of course, this is merely a straightforward application of the Constitution’s Article VI Supremacy Clause.) These critics must not know his writings. In two major academic papers, he has argued explicitly that judges are not always or only supreme in interpreting and acting on the authority of the Constitution. In a major lecture at Case Western Reserve University, Pryor posited that there are significant circumstances in which there is an “authority of both the federal executive and state executives not to enforce or defend laws that they, in good faith, conclude violate the Constitution.”
And in a paper for the Federalist Society on the seminal case of Marbury v. Madison, Pryor argued that the very case that, in popular lore, established the practice of judicial review, “is not a precedent for judicial activism,” but instead a “modest” but crucial exposition of a role for the judiciary that is both “limited and essential.”
Repeat, and note: The judiciary’s role, according to Pryor, is neither negligible (on one extreme) nor all-encompassing (on the other), but instead “essential” within a circumscribed and “limited” realm.
In fact, just as social conservatives criticize Pryor for being a judicial supremacist, Damon Root writes in the libertarian journal Reason that Pryor is far too much “an adherent to the legal philosophy known as judicial deference.”
So Pryor is too much the supremacist but also too deferential, too pro-gay but also too anti-gay.
Methinks this means he has hit the “sweet spot” in which a judge has no agenda at all, and no over-arching “theory of everything,” but merely a determination to apply the law in a careful and neutral manner.
Bill Pryor’s critics miss the mark. If he errs, he doesn’t err in some grand, earth-shaking way destined to achieve or block major social change or retrogression. Instead, if he errs at all, he errs in assessing the details — and if he gets things right, it is because he pays such close attention to the details in the first place.
Pryor knows that a judge is not a philosopher king; a judge is a public servant owing what the poet Tennyson called “some reverence for the laws ourselves have made… some civic manhood firm against the crowd.”
That approach, and an intellectual integrity to match, are the attributes that justly put Pryor on the short list for the Supreme Court.
(Monday: The case of Bill Pryor and Roy Moore)
Quin Hillyer is a Senior Editor of The American Spectator. Follow him @QuinHillyer.