Sunday, April 13, 2003

the Pryor nomination, cont'd: Bush v. Gore

Continuing with the activist and partisan record of 11th Circuit nominee Bill Pryor (see earlier posts here and here), today's topic is his interjection of himself into the Bush v. Gore battle. (For further reading on this nomination, see the Washington Post's editorial, called "Unfit to Judge").

The main documents to peruse here are two amicus briefs that Pryor filed -- one with the Eleventh Circuit, and the other with the Supreme Court (both pdfs: here and here, respectively).

As you probably recall, the Eleventh Circuit case was an appeal from a federal district court's refusal to issue a preliminary injunction against the manual recounts; the Circuit held that the district court had acted properly in refusing to issue such an injunction. Now, one might think that a true believer in what is now called "federalism" -- and particularly the highest legal officer of a State -- would likely take the position that election-law matters should be left up to the States rather than to federal judges. Surely, at least, the highest legal officer of a State would be likely to argue that the state courts should at least have the first opportunity to rule on such matters, with review if necessary in the U.S. Supreme Court to decide any federal questions. And surely, one would think, that would be the position of someone who, like Pryor, is particularly known for opposing federal intervention into state and local governance (including a history of decrying federal authority under the Voting Rights Act). But Pryor's unsolicited amicus brief in the Eleventh Circuit case dashed any such expectation; he urged the Court to reverse the district court's denial of an injunction against the recounts. And his brief included some arguments which were so truly shaky and novel (to put it charitably) that one can hardly imagine a State Attorney General advocating them -- such as his argument that interpreting ballots to determine voter intent would somehow violate the First Amendment. Although such an argument might conceivably have passed the laugh test for a private lawyer representing partisan interests and scratching around for any semi-plausible argument to raise, it was hardly the sort of mainstream stable argument that one has a right to expect from any government's highest legal official; and it is hard to imagine that Pryor would have made the same sort of argument, in the name of the State of Alabama, had the recounts been sought by Bush rather than Gore. The Eleventh Circuit, fortunately, declined to follow Pryor's urging. The majority, by the way, included three Republican appointees, including Judge Cox (a very conservative judge himself, who occupied the seat to which Pryor has now been nominated), Judge Edmondson and Judge Black.

Having been unsuccessful before the Eleventh Circuit, Pryor continued to inject himself into the Bush v. Gore matter, still using the resources and clout of the State of Alabama, by filing the above-linked amicus brief in the Supreme Court. Particularly notable in this regard is that, at least so far as LEXIS discloses, Pryor was the only Attorney General outside of Florida to file an amicus brief in the case. Other Attorneys General presumably understood the crucial necessity of not adding to the public perception that partisan manouevering was at work in the Supreme Court litigation; the sight of Attorneys General filing briefs galore in the Supreme Court, depending on their own preferences for the outcome of the Presidential election, would have been too much to bear. Pryor was, it seems, the only Attorney General who did not feel it appropriate to sit this one out in the Supreme Court.

I submit that the lesson here -- even for those of you who do not feel (as I do) that the Supreme Court's Bush v. Gore decision was a monumental disgrace -- includes at least the following points, all of which will be seen again and again in the continuing scrutiny of Pryor's nomination:
(1) His commitment to "federalism" -- to minimal federal intrusion into matters that are traditionally the subject of state governance -- is situationally variable. Sometimes it is strong; other times, it is abandoned in favor of some other belief or pursuit. This in itself is not necessarily a bad thing; but it will allow us to understand that when (for instance) he advocates "federalism" doctrines in opposition to the rights of women, or disabled people, or racial or ethnic minorities, or others, he is doing so not because he believes in "states' rights" as a neutral principle to be pursued in all cases, but because he believes in the results he advocates in those particular cases.
(2) His sense of the boundary separating appropriate official action from inappropriate partisan warfare is different from, is less strict than, that of most other officials in similar positions. As he created an explicitly partisan divide between Republican and Democratic State Attorneys General despite the tradition of relative non-partisanship among holders of that office (as explained at length here), so he gave free rein to his beliefs in the Bush v. Gore battle in the Supreme Court where other State Attorneys General deemed it more proper to let the parties to that case make their own arguments. It is, I think, fair to wonder whether he could truly be trusted to dampen his own enthusiasms more successfully if he were a judge, and to stick to a more settled and mainstream judicial role.

Here, finally, is a short autobiographical point, so that no one will think that I am hiding my own viewpoint here behind a mask of objectivity. The "hook" for Pryor's amicus briefs in the Bush v. Gore cases was his argument that the battle there was legally similar to a case that had been litigated a few years earlier, about the counting of absentee ballots in a close race for the Chief Justice of the Alabama Supreme Court. As the assistant to then-AG (now Senator) Jeff Sessions, Pryor had litigated that case for the State, arguing against the State Supreme Court's resolution of the dispute; I was one of the lawyers on the other side. His side won in the Eleventh Circuit, with a panel that included two of the judges who later dissented from the Circuit's refusal to intervene in the presidential election. That was one of two big election-law matters that we litigated against each other, back in our younger days.

UPDATE: The blogger at Southern Appeal thinks that I was being misleading by not being more precise that Pryor was the only state AG who filed an amicus brief in Bush v. Gore not Bush v. Palm Beach. It is true that in Palm Beach -- the lame little non-decision that preceded Bush v. Gore -- Pryor was not the only AG who filed a brief. Others, like him, also weighed in, lining up on partisan grounds. But when push came to shove -- when the Supreme Court was poised to be the body that actually decided who would be the next President in Bush v. Gore -- only Pryor filed a brief. That's what I said, that's what I meant, and that's an important point, I think.

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