(The Return of) Ignatz, by Sam Heldman

Monday, April 14, 2003

The Pryor nomination, cont'd: the so-called "federalism" cases
Thanks very much to other bloggers who have noticed, and linked to, my pieces about 11th Circuit nominee Bill Pryor. For the Pryor-related post before this one (and links to previous ones on this site), see here.

Before talking again about Bill Pryor, let's talk about Sixth Circuit nominee Jeff Sutton. Sutton has been at the forefront of the war for what's called "federalism" by its proponents these days – a new legal formulation of "states' rights" doctrine that is an effort to limit the range of topics on which the democratic process can work through legislation at the national level. Sutton's work on this war has nearly derailed his nomination. Among the things that Sutton has argued, often seeing his arguments upheld by the narrowest of margins at the Rehnquist Court: that a substantial part of the Americans with Disabilities Act, regarding State employment, is unconstitutional (Garrett); that the same is true of the Age Discrimination in Employment Act (Kimel); that the federal Violence against Women Act is unconstitutional (Morrison, amicus brief); that racial and ethnic minority groups cannot sue under federal regulations prohibiting disparate impact discrimination (Sandoval); and that the federal authority to protect the environment must also be restricted by the Supreme Court (Solid Waste Agency, amicus brief).

Sutton's supporters have rallied around him despite his hard work on these issues, based on the assertion that Sutton was merely doing what lawyers do: representing a client. His clients' views and goals, said Sutton's supporters, could not be imputed to Sutton. Among the people explicitly making this argument on Sutton's behalf was Senator Hatch, e.g. here.

What does this have to do with Bill Pryor? It is that in each and every one of the cases cited above, the client was Bill Pryor. It was Bill Pryor who decided that the State of Alabama would aggressively make the arguments that have led to a radical rollback of the legislative authority of the nation. In the State of Alabama, the Attorney General has the sole power to decide what legal action will be taken by the State and its agencies. If a State agency, or State officials, want to take a certain stance in court, but the Attorney General disagrees as a matter of law or policy, the Attorney General prevails. This is the law in Alabama under such cases as Ex parte Weaver, 570 So.2d 674 (Ala. 1990). The positions from which even Senator Hatch tried to distance Sutton – those are the positions that Bill Pryor himself has decided to use the resources and clout of the State of Alabama to pursue.

Some will probably say in his defense that he was merely pursuing arguments that were in the litigation interest of the State – to defend the State Treasury, or to extend the State's authority, through any legitimate argument – rather than advocating positions in which he personally believes. That won't wash, for at least these reasons: (1) he has made it clear in many speeches (available at the AG Office's official website, here and in such documents as his year-end reports here) that his advocacy of these positions is a matter of personal pride and belief, not merely a matter of the litigation interests of the State; (2) he has (as mentioned in yesterday's post) decided in some instances to take legal positions that detract from the State's authority (see, for instance, Bush v. Gore and related cases; and see also his amicus brief in at least one Supreme Court case, Norfolk Southern v. Shanklin, advocating federal preemption of state law); (3) he has outspokenly and vigorously opposed certain other litigation positions that would have been in the State's pecuniary interest – most notably, the tobacco litigation – thus likewise proving that his legal decisions are not simply governed by a calculus of what is in the State's litigation interest; and (4) his advocacy of so-called "federalism" arguments has gone well beyond those cases in which the State's pecuniary interest was at stake (Kimel, Garrett) and has included cases in which a disemboweling of federal power did not confer any such benefit on the State (Morrison, Solid Waste Agency v. Army Corps of Engineers).

In the end, there is no way around it: Bill Pryor has used his authority as the State's highest legal officer to advance a vision of states' rights that results in the abridgement of federal protections for women, older people, disabled people, racial and ethnic minorities, the environment … the list grows continuously. He has done this based on his own personal views of constitutional law and his belief in the particular policies that he is advocating; and his views about "federalism" are by no means abstract across-the-board principle but instead are situationally variable depending on the particular policies and issues at stake. Having ridden the wave of a slim majority on the Rehnquist Court to advance his particular constitutional vision, he would be quite likely to push this vision even further if placed on the federal bench.

posted by sam 12:15 PM 0 comments


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