Say you find yourself nominated for a seat on one of the nation’s federal courts of appeal. You face a confirmation hearing in a bitterly divided Senate Judiciary Committee. You know that if you’ve ever made any particularly blunt statements in the past — particularly if they were true — you’ll be confronted with your words and expected to explain to senators that your remarks were somehow taken out of context, that your real meaning was obscured, or that you wouldn’t say such a thing today. At least that’s what the confirmation handbook says you should do. But on Wednesday in the Dirksen Senate Office Building, William Pryor, the Alabama state attorney general who has been nominated to a seat on the 11th Circuit Court of Appeals, threw the confirmation handbook out the window. The result was one of the most extraordinary Judiciary Committee sessions in recent memory.
THE “WORST ABOMINATION”
Pryor has said some very blunt things in the past. For example, he’s a vigorous opponent of abortion and has called the Roe v. Wade decision “the worst abomination in the history of constitutional law.”
The quote appears in every anti-Pryor tract produced by the liberal interest groups that oppose his nomination. Before the hearing, Pryor no doubt knew that more than one senator would read his words to him and ask for an explanation. And indeed, right off the bat, New York Democrat Charles Schumer recited the “abomination” line and asked, “Do you believe that now?”
It was the perfect moment for Pryor to begin a backpedaling, thank-you-for-your-question-and-please-confirm-me explanation. Instead, Pryor said, simply, “I do.”
Schumer looked slightly amazed. “I appreciate your candor,” he said. “I really do.”
Later, Pennsylvania Republican Arlen Specter went over the same ground. Did Pryor really say such a thing? Specter asked. Was the quote accurate?
Yes, Pryor said, the quote was accurate.
Did Pryor stand by his words?
“I stand by that comment,” Pryor said. “I believe that not only is [Roe] unsupported by the text and structure of the Constitution, but it has led to a morally wrong result. It has led to the slaughter of millions of innocent unborn children.”
Specter seemed more than a little chagrined. “Well,” he said, pausing for a moment and looking down, “let’s move on.”
There were plenty of other Pryor statements to move on to. There was the time he said that with Roe, the Supreme Court had created “out of thin air a constitutional right to murder an unborn child.” And then there was the remark that he “will never forget January 22, 1973 [the day of the Roe decision], the day seven members of our highest Court ripped up the Constitution.”
Given more opportunities to back away from his words, Pryor again declined. “I believe that abortion is the taking of human life,” he explained when committee chairman Orrin Hatch asked him about his comments. “I believe that abortion is morally wrong.”
At that point some longtime confirmation observers, while impressed with Pryor’s candor, wondered what was going on. Who is this guy? Is he suicidal?
Honest would be more like it. In years of speeches, interviews, campaigning, and writing, Pryor has in fact said many of the things attributed to him. Faced with strong Democratic opposition in a tense confirmation setting, he could either do an across-the-board climb down — something that would have looked ridiculous, given the intensity of his opinions on many matters — or he could argue that yes, he holds strong personal views but is able to separate them from his performance as a public official.
Pryor chose the latter. “I have a record as attorney general that is separate from my personal beliefs,” he told Hatch. “I am able to put aside personal beliefs and follow the law, even when I strongly disagree with it.”
On abortion, Pryor argued that, despite his personal opposition, he had ordered Alabama’s district attorneys to take “the narrowest construction available” of the state’s newly passed partial-birth-abortion ban. Pryor told the committee that he believed Supreme Court precedent, specifically the Casey decision, dictated a more moderate reading of the law than the aggressive stance favored by some pro-life groups in Alabama. “Look at my record,” he told the committee. “I have done my duty.”
After abortion, the most contentious issue at Wednesday’s hearing was the sometimes-touchy legal relationship between the states and the federal government. Pryor is a state attorney general and has on several occasions argued in favor of state interests when he felt they were being encroached upon by federal power. For his troubles, the left-wing interest group People for the American Way recently called him “a leader of the modern states’ rights movement,” a not-too-subtle attempt to link Pryor to southern defenses of segregation.
People for the American Way and other critics pointed to a Supreme Court case, United States v. Morrison, in which Pryor filed an amicus brief arguing against the constitutionality of part of the Violence Against Women Act. Pryor argued that Congress had unreasonably stretched the meaning of the Constitution’s Commerce Clause to impose federal penalties on those guilty of violence against women. He argued that if Congress wanted to use the Commerce Clause to regulate an activity, then that activity must involve commerce — and that physical assault does not qualify. Pryor’s opponents have written disapprovingly that he was the only state official to file a brief opposing portions of the act, while officials from 37 other states filed briefs supporting it.
To hear Democrats tell it, Pryor had made a grievously misguided legal judgment. But the problem for Pryor’s opponents is that he was, in fact, proved right. The Supreme Court, in a five-to-four decision, ruled in favor of Pryor’s argument in United States v. Morrison.
The same held true for other federalism cases in which Pryor played a part. While committee Democrats clearly did not like Pryor’s position in those cases, they found it difficult to overcome the fact that Pryor’s arguments had been validated by a majority of the nation’s highest Court. At the very least, Pryor’s Court victories made it difficult for Democrats to charge, as they have in other confirmation battles, that the nominee was far outside the judicial mainstream.
THAT NICE JUSTICE SOUTER
Much of the hearing focused mostly on stray comments Pryor has made in the past about the Supreme Court. For example, after a high Court ruling on an Alabama death-penalty case a few years ago, Pryor said, “This issue should not be decided by nine octogenarian lawyers who happen to sit on the Supreme Court.” While nobody pointed out that the remark was factually wrong — after all, there are some spry justices who have not quite hit their 80s — Democrats in general took offense.
Massachusetts senator Edward Kennedy pressed Pryor to admit that he had made an “improper” statement. Pryor declined, calling it instead “overheated political rhetoric.”
But wasn’t it improper? Kennedy asked again.
“It was overheated,” Pryor answered.
Kennedy kept at it. Finally, Pryor offered a compromise. “I think it was inappropriate,” he said.
Other Democrats questioned Pryor about remarks made in July 2000 about David Souter, the Supreme Court justice appointed by the first President Bush who has often disappointed Republicans by taking liberal positions in key cases. Speaking to a Federalist Society audience, Pryor praised the Court’s federalism decisions, but noted the narrow margin of victory in many of them. “We are one vote away from the demise of federalism,” he said. “Perhaps that means that our real last hope for federalism is the election of Governor George W. Bush as President of the United States, who has said his favorite justices are Antonin Scalia and Clarence Thomas….I will end with my prayer for the next administration: Please, God, no more Souters.”
Senator Schumer asked Pryor: “What’s wrong with Justice Souter?” For a moment it appeared that Pryor would retreat, as he began to explain that his remarks were a “perhaps feeble attempt at humor.” But then Pryor stiffened again, saying he was simply responding to Souter’s outspoken opposition to majority decisions in some federalism cases. “I have on several occasions disagreed with decisions of Justice Souter,” Pryor explained. When asked why he had singled Souter out, Pryor gave a simple answer: Because Souter had written the opposing opinions. The issue went away.
THE ATTACK THAT WASN’T
All the talk about abortion and federalism and octogenarians and David Souter tended to conceal an extraordinary aspect of the hearing. Even though Pryor is a conservative white Republican from Alabama, there were almost no attacks on him based on race. Race was, in fact, a virtual non-issue in the hearing.
Yes, there was the “states’ rights” innuendo — Pryor told the committee he didn’t like the term because “from John C. Calhoun to George C. Wallace” it had been “used as an illegitimate defense of evil.” There was also some talk about Pryor’s opinion on one portion of the Voting Rights Act. But the strength of Pryor’s record on race forced Democrats to abandon their traditional strategy of accusing southern Republicans of being “insensitive” to the concerns of African Americans.
To attack Pryor on race, Democrats would have had to counter the evidence contained in a detailed testimonial for Pryor sent to the committee by Alabama Democratic state representative Alvin Holmes. Offering his “full support and endorsement” of Pryor, Holmes, who is black, listed several examples of what he called Pryor’s “constant efforts to help the causes of blacks in Alabama.” Pryor had sided with the NAACP against a Republican lawsuit challenging state-legislative districts, Holmes wrote, even after he “came under heavy pressure from other white Republicans in Alabama for fighting to protect black legislative seats.” Pryor played a key role in the prosecution of the last men charged in the 1963 Birmingham church bombing, took the lead in ending racial disparities in criminal sentences, worked to strike the state’s ban on interracial marriages, and wrote a bill strengthening penalties for cross burning, Holmes wrote.
The committee also received a letter from former Alabama state representative Chris McNair. While McNair noted Pryor’s stands on legislative districting and other issues, his testimonial was more personal. McNair’s daughter, Denise, was one of four girls killed in the 1963 bombing. “Bill Pryor’s personal support for the recent trials of the men convicted of bombing the 16th Street Baptist Church and the murder of my daughter has meant a lot to my family and this community,” McNair wrote. “By designating the prosecutors as Special Assistant Attorney Generals and by providing financial assistance through his office, he demonstrated a commitment to justice that had been long overdue. I had numerous conversations with him about these cases and his desire to see that justice was done. His commitment to the cases was sincere and has been very much appreciated.”
NO BACKING DOWN
Whenever Pryor comes up for a vote in the Judiciary Committee — it could be a couple of weeks — it is likely that he will be approved on a straight party-line vote. If Democrats remain united in opposition, that would make him an ideal candidate for yet another filibuster on the Senate floor.
But that is not guaranteed. Yes, Pryor has made strong statements about abortion, but not any stronger than those made by Michael McConnell, who was confirmed by the Senate — when it was controlled by Democrats — to a seat on the Tenth Circuit Court of Appeals. Yes, Pryor’s opinions on federalism rankle some Democrats, but his views have the virtue of having prevailed in several Supreme Court cases. And yes, Pryor’s statements about Souter and the Court’s octogenarians were unwise, but by no means confirmation-killers.
So maybe he will be filibustered and maybe not. In the end, Pryor’s nomination might be the ultimate illustration of the capriciousness of the confirmation process as currently practiced in the Senate. How could Democrats filibuster Pryor when they confirmed McConnell? On the other hand, how could they not filibuster Pryor when they are filibustering Priscilla Owen, the Texas judge who angered Democrats by her views on the decidedly tangential issue of parental notification for teenage girls seeking abortions?
Whatever happens, Pryor knows this: He didn’t duck, he didn’t cover, and he didn’t backtrack in the face of his critics on the Judiciary Committee. And when it was all over, even his opponents respected him for that.