(The Return of) Ignatz, by Sam Heldman

Tuesday, April 29, 2003

Pryor (what? more?)
Here is a bit more in response to the National Review article discussed below, in which the author supports the nomination of Bill Pryor.

The author claims that Pryor demonstrates "great deference and humility towards other branches of government and higher courts"—a claim that is either a meaningless platitude or a false statement. Just to take a few examples: According to the Washington Post, he ended one speech with a swipe at Justice Souter. His publicly-stated analysis of the Supreme Court's near-unanimous decision in the VMI case was the dismissive and derisive assertion that the Court (including Justice Rehnquist) "somehow" reached its decision, in a fit of "political correctness". He called the Ninth Circuit's Newdow decision "ridiculous and outrageous." (Agree with him if you wish, but it's hard to call that "deference and humility … towards [a] higher court[]"). He sneered at President Clinton and Attorney General Reno in a public speech, calling their pursuit of a lawsuit against the tobacco industry "extortion" among other less than humble and deferential remarks. And his lack of deference to the Congress is the centerpiece of his legal fame (for instance, in his insistence that the Congress had no authority to enact a law that prohibited States from selling personal information about their citizens; fortunately, the Supreme Court unanimously disagreed). If deference and humility towards other branches of government and higher courts are virtues for judicial nominees, they are virtues that Bill Pryor has not demonstrated.

The author of the National Review piece also claims that Pryor was "duty bound" to decry Section 5 of the Voting Rights Act as an unwarranted intrusion into state affairs. Hogwash. First of all, under that reasoning, the Attorneys General of sixteen states (the number of states with jurisdictions that are covered presently under Section 5) would likewise have been obligated to decry Section 5 in equally strong terms; but there is no indication that they have done so. More importantly, if one truly believed that Bill Pryor was "duty bound" to take positions against federal intrusion that would limit States' authority, regardless of whether he believed in those positions, then one would have to conclude that Pryor has shirked that duty in many situations. Consider, for instance, the case decided by the Supreme Court this Term in which a right-wing group was attacking the IOLTA programs by which every State funds legal services for poor people. Alabama's program, like other states', stood to be struck down if this attack had succeeded. And 38 Attorneys General by my count, together with the Conference of Chief Justices, the National League of Cities, and other national establishment groups, rallied to the defense of state laws. But not Bill Pryor.

My point is not that Bill Pryor has done something wrong by failing to advocate vigorously for the constitutionality of every state law. In fact, I applaud him for recognizing that he does not have to do so; he has taken an oath to support the U.S. Constitution as he understands it, even when that may conflict with state law. I hope that he is candid enough to say, for instance, "I have defended Alabama's anti-vibrator law, and its anti-sodomy law, more vigorously than I defended Alabama's IOLTA program because that's what I believed in." My problem is with his beliefs as to what the States have a "right" to do, and what they do not. And my problem also is with those who pretend that his beliefs have not entered into his official actions, and who pretend that they would not continue to do so if he were confirmed as a judge; for every judge's beliefs are manifested in his or her opinions.

posted by sam 11:04 AM 0 comments


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