It is said that conservatives, like elephants, never forget — and apparently some of them never forgive, either.
For very good reason, conservative 11th Circuit Court of Appeals Judge William Pryor is reportedly on President-elect Trump’s short list for a Supreme Court nomination. Strangely, some of the fiercest opposition to Pryor comes from a small band of Christian conservatives. Their arguments are sincere, but wrongheaded, as I began to argue in Part One of this column last week.
In Part One, I reminded conservatives that judges aren’t free to impose supposedly conservative results when the facts and the law don’t support those results in a particular case. I suspect, though, that the greater opposition to Pryor comes not due to his decisions in any small set of cases but because of the role Pryor played in the 2003 ouster from office of religious-right hero Roy Moore, “the Ten Commandments judge,” from Moore’s post as chief justice of the Alabama Supreme Court.
Moore’s allies have long memories.
Therefore, let us briefly recount those old circumstances, distinguish them from Moore’s overall fine record, and put Pryor’s overall record into proper perspective — not as an endorsement of Pryor as the single best choice for the nation’s highest court but as support for the idea that he clearly merits his place among the finalists alongside the likes of the very impressive Diane Sykes.
As I do so, please forgive some of the first-person references, but they seem necessary here to fully explicate the 2003 imbroglio’s relation to today’s criticism of Pryor.
First, for a fuller accounting of Moore’s first removal from office (he was subsequently elected to the same post in 2012 and then again removed, or technically “suspended” for the rest of his term, this year[i]), please do read the explanatory column I wrote on it for National Review at the time. It is here. The short version is that Moore erected a 5,280-pound Ten Commandments monument in the state Supreme Court building and then refused to move it, in defiance of a federal court injunction, even after losing all the appeals he did file and after failing on other counts to file timely appeals at all.
Pryor, as Alabama’s attorney general, was tasked with the job of prosecuting an ethics case against Moore — and the state’s Court of the Judiciary found Moore had contradicted judicial ethics and removed him entirely from office.
My column linked above more fully explains the legal maneuverings and Pryor’s uncomfortable position at the time. What I regret about the column, though, is instructive in that it captures the degree of raw feelings then, as a help to understanding why today’s Pryor opponents still feel so bitter.
What I regret is the unnecessarily personal, and insulting, second sentence of the column (“an oddball and a zealot”), along with several other more personal shots I took at Justice Moore back then. Of all the millions of words I’ve written for publication, those are the ones I would most like to take back. They were overkill. Here’s how they happened:
For years, constitutional conservatives (myself very much included) chafed at the court’s continuing assaults against harmless expressions of faith in the public square. When then-Judge Moore, a brilliant jurist, first placed a modest replica of the Ten Commandments in his local courthouse, it seemed a perfect vehicle to make a reasonable, well-crafted case for pushing back against those assaults and regaining a little lost ground. And when Moore was elected Chief Justice (I arguably was the only writer in the state who gave him a fair shake during the campaign), it seemed even more likely that a challenge to the reigning orthodoxy might be able to succeed.
But Moore went overboard. His new monument wasn’t modest but massive. His legal pose was not measured but astonishingly provocative. And his tactics appeared not craftily designed for victory but recklessly intent on a martyr’s defeat.
To those in the conservative legal world, it was as if — well, let’s use some Medieval imagery. It was as if good people had spent years preparing a mighty fortress or castle to protect the most valued possession in the realm, only to see Moore grab that treasure and ride out from the castle, accompanied by just two flag-bearers, against an army of thousands arrayed against him. He doomed himself to defeat, with the treasure likely squandered.
Conservative legal leaders thought Moore’s actions had not only failed to advance the cause but actually harmed it, and they were furious. Their fury — and mine as a lay adherent to their constitutional understandings — was reflected in the unfortunate tone of my 2003 column. Likewise, the fury of Moore’s fans, who felt abandoned when the larger conservative legal world did not back their hero to the hilt, was just as strong in return.
It’s that same fury driving their criticism of Pryor now.
But Pryor then was in a no-win situation. Since Moore was removed from office, I’ve had conversations, too numerous to count, about that case with top conservative legal thinkers both nationally and in Alabama. Most agree that Moore, in his understandable eagerness to vindicate his avowal that all valid law stems from The Almighty, clearly violated state legal ethics rules in several respects. And Pryor, as the state’s top law-enforcement official, was duty-bound to prosecute the case that removed Moore from office.
Pryor had nothing personal to gain from doing so and much to lose: His judicial nomination, then subject to an endless filibuster, seemed utterly dead no matter what he did, while his home-state electability for re-election or for any other office was terribly wounded because he was seen (unjustly) as “persecuting” the uber-popular Moore.
(Note: The possibility of a “recess appointment” for Pryor was a long way from surfacing then, and the whole notion of the Senate “nuclear option” threat to abolish the filibuster of judicial nominees, and the resulting “Gang of Seven” agreement to allow Pryor to be confirmed, was two full years away from even being considered.)
But Pryor followed his oath of office. In a nutshell, Pryor’s almost irrefutable logic then was the same logic he used in his concurrence in the 2011 Keeton v. Anderson-Wiley case I mentioned in Friday’s column [my emphasis added]:
Every profession has its own ethical codes and dictates. When someone voluntarily chooses to enter a profession, he or she must comply with its rules and ethical requirements. Lawyers must present legal arguments on behalf of their clients, notwithstanding their personal views. Judges must apply the law, even when they disagree with it. So too counselors [in Georgia] must refrain from imposing their moral and religious values on their clients.
This concurrence, written eight years after the (first) removal of Moore from office, shows a remarkable and admirable intellectual consistency. Pryor is a man who takes formal, professional ethics rules very seriously and reads them very strictly. Even if those codes ensnared a crusading conservative chief justice and Pryor thus acted against the justice, that doesn’t make Pryor’s constitutional conservatism suspect. Indeed, it makes it both more evident and more acceptable by both the legal Right and the legal Left: After all, with a man of such rigorous consistency, all sides know how he reasons, and both know he will operate fairly to both sides.
As it was put back in 2003 by Joe Reed, then and now the chairman of the Alabama Democratic Conference and then a member of the Democratic National Committee, Pryor always “will uphold the law without fear or favor.” (Reed was one of many African Americans of both parties who enthusiastically endorsed Pryor’s federal judicial nomination.)
It is probably for this reason that, while serving as a federal appellate judge, Pryor was named (by President Obama) to the bipartisan United States Sentencing Commission in 2013 (approved unanimously by the Senate) and became its Acting Chair two weeks ago (Jan. 3). Considered by Scotusblog to be, as a judge, “no friend of criminal defendants,” he nonetheless as Alabama attorney general and on the sentencing commission has been seen as a thoughtful reformer.
Moore’s allies who still hold a grudge against Pryor should realize that 13 years is too long to remain furious at a man who was just doing his duty as he honestly saw it. Judge Pryor’s actions and reasoning are always transparent, with no guile or subterfuge involved — and with a good jurist’s respect for the proper limits on a judge’s reach. That’s why, in a speech he gave at the graduation ceremony of his high school alma mater in Mobile, he said this Constitution is “rooted in a Christian perspective” that specifically “is found in a rightly ordered political community — a community that is founded on the principle of the consent of the governed.”
Pryor’s whole career is one of respecting the right order of things — an order ultimately determined not by judges but through the republican processes faithfully grounded in the people’s consent.
Spectator Senior Editor Quin Hillyer has closely covered Bill Pryor’s career since 1998. Follow him @QuinHillyer.
[i] For what it’s worth, I do not agree with 2016’s “permanent suspension” of Chief Justice Moore from his seat on the bench, regarding his fight against homosexual marriage. Of several differences between the 2016 ethics case and the 2003 one, in 2003 the chief justice was specifically the target of the injunction he transgressed, whereas in his fight last year, he was not a party defendant in the injunction at issue. This distinction makes it harder to argue that in 2016 he directly defied a court order binding personally on him.