Facing determined Democratic opposition, Senate Judiciary Committee chairman Orrin Hatch has delayed a vote on William Pryor, the Alabama attorney general nominated for a seat on the 11th Circuit Court of Appeals. The committee vote had been expected next Thursday, June 26. Now, it appears unlikely to take place before July 10.
At issue are hundreds of written questions sent to Pryor by committee Democrats. After a confirmation hearing, each senator has the right to submit follow-up questions to the nominee. It’s normally a pro-forma procedure — often there are few, if any questions — but in the case of Pryor, Democrats have submitted more than 250 queries.
“He got volumes of them, the most I’ve ever seen,” says one Republican. “It’s absurd.”
Many of the questions involve complex legal issues and cannot be answered in brief responses. Pryor, who received the questions late Tuesday, will need a significant amount of time to answer them, but is expected to be able to do so by next Tuesday or Wednesday.
Under normal circumstances, that would have been acceptable to all sides, and a vote would have been possible next Thursday. But in Pryor’s case, Republicans anticipated that Democrats would protest that there were so many issues involved, and so many questions left unanswered, that a vote should not be held so shortly after receiving Pryor’s responses. Democrats were thought to be likely to repeat earlier accusations that Hatch was trying to race nominees through the committee without proper debate.
So Hatch preempted the protests and delayed the vote himself.
Many of the questions submitted to Pryor focus on issues related to his views of abortion and the separation of church and state. But a number of the questions appear barely relevant to the nomination and instead seem designed to extend the political argument over the Bush administration’s judicial nominees.
For example, one of Illinois Democratic Sen. Richard Durbin’s 50 questions asked Pryor: “You are a member and officer of the Federalist Society. Over half of the circuit court nominees we have seen this year are members of the Federalist Society. Yet fewer than 1% of the lawyers in America belong to this group. Why do you think that so many of President Bush’s circuit court nominees are members of the Federalist Society?”
While Durbin’s question echoed Democratic arguments often heard at meetings of the Judiciary Committee, it is unclear what information Pryor, who is not a member of the Bush administration or the Judiciary Committee, could add to the subject.
Vermont Democrat Patrick Leahy asked Pryor 44 questions, some of them more focused on the process of Pryor’s nomination than on his legal views. “Please describe in detail who contacted you about this nomination and when,” Leahy asked, “what communication you have had and with whom, before you agreed to be nominated.” In another question, Leahy, who has often expressed concern about conservative judges being given lifetime appointments, seemed concerned that Pryor might not stay on the bench for the rest of his life. “You are currently a politician and you have demonstrated your strong interest in political matters,” Leahy wrote. “Do you intend to serve the rest of your career as a Court of Appeals judge if confirmed and not seek other political office?”
Wisconsin Democrat Russell Feingold asked Pryor 59 questions, a significant number of them detailed queries about Pryor’s involvement in the Republican Attorney Generals Association, a group Pryor helped found. At Pryor’s hearing, Feingold seemed almost obsessively concerned with the GOP organization’s fundraising activities, although there was no question of impropriety involved. In his written questions, Feingold pursues the issue even further, with questions that will undoubtedly require extensive, time-consuming research. For example, Feingold asked Pryor, “Did anyone in your employ or under your direction speak to, or contact by mail or by phone, any potential member of RAGA about joining the organization?” Feingold also asked Pryor to “Please list all speeches or addresses in which you described or discussed RAGA to or with the audience and provide copies of prepared text or transcripts of each such speech or address.”
Other questions appear to be unusually argumentative. For example, North Carolina Democratic Sen. John Edwards took exception to Pryor’s use of the word “sublime” to describe a judicial decision he particularly admired. In one of his 16 questions, Edwards, who described the decision as “flat out wrong,” wrote, “Merriam Webster Dictionary defines ‘sublime’ as ‘lofty, grand, or exalted in thought, expression, or manner; of outstanding spiritual, intellectual, or moral worth; tending to inspire awe usually because of elevated or transcendent excellence.’ What about [the decision] made it worthy of such praise?” As a follow-up, Edwards asked, “Can you name any other cases that you view as ‘sublime?’ Explain.”
Still other questions appear to be little more than speeches that cover material already discussed at Pryor’s hearing. For example, among New York Democrat Charles Schumer’s 19 questions was the following, quoted here in its entirety:
You have made several comments in which you are strongly critical of Justice Souter’s jurisprudence, including ending one speech regarding the need to appoint conservative judges with the prayer, “Please, God, no more Souters.” You made another remark expressing your pleasure that Bush v. Gore was decided by a 5-4 margin, and expressing your hope that the narrowly decided case would give President Bush an appreciation of the importance of judicial selection, “so we can have no more appointments like Justice Souter.”
While Justice Souter has dissented from most of the Rehnquist Court’s states’ rights jurisprudence that you have repeatedly heartily endorsed, he has been joined in almost every instance by Justices Stevens, Ginsburg, and Breyer. In several of those cases, Justice Souter has not written a dissenting opinion but has instead joined a dissent written by another justice. In the case of Board of Trustees of University of Alabama v. Garrett, the lone states’ rights case in which you were representing Alabama as a party and not as an amicus, Justice Breyer wrote the dissent, not Justice Souter. In the Violence Against Women Act case, Morrison, you said you singled out Justice Souter because he wrote the dissenting opinion, but Justice Breyer also wrote a dissent and you did not level the same comments at him.
In certain circles, Justice Souter’s nomination by the first President Bush is routinely criticized as a mistake because Justice Souter has not supported the Court’s states’ rights revolution. Recent reports have suggested that should a justice retire, White House Counsel Alberto Gonzales would be an unacceptable choice to some conservatives who want an activist Court because, “Gonzales is Spanish for Souter.”
It seems clear from both the content and context of your remarks that you singled out Justice Souter because he was nominated by a Republican President but has not voted in line with the conservative bloc on the Court, but perhaps there is another reason.
Why have you singled out Justice Souter for criticism when three other justices have dissented in almost all of the cases you care most passionately about?
At the hearing last week, Schumer made a similar statement and asked Pryor, “Why have you always sort of singled out Souter in your comments?”
“Well, in the context of the speech that you mentioned,” Pryor responded, “where I said ‘Please, God, no more Souters, I had specifically criticized his dissenting opinion in Morrison, which has already been discussed today, with the case involving one part of the Violence Against Women Act…”
“But why did you pick Souter?” Schumer asked again.
“Not everyone wrote an opinion in those cases,” Pryor answered.
“Okay,” Schumer said. “But Justice Breyer did write one in the Violence Against Women Act. But again, you think Souter is within the mainstream?”
“I don’t know if I’m the evaluator of who is in the mainstream or not,” Pryor said.
“We’re just asking you your opinion,” Schumer said.
At the time, Schumer seemed satisfied enough to move on to other issues. But now he has asked Pryor to recover the same ground in written form.
In the end, the sheer volume of questions from Schumer and other Democrats forced the delay of the Pryor vote. And it is impossible to avoid the suspicion that that is what the 250-plus questions were designed to do. There’s no hope that Pryor, even if he gives expansive, well-researched answers to every question, will change any Democratic minds. Rather, after the delay, Democrats will likely insist that there are simply too many questions about Pryor to go forward with the nomination. When Hatch, the committee chairman, finally forces the issue and puts Pryor to a vote, every Democrat is expected to vote against him.