First, let’s get this straight: Alabama Chief Justice Roy Moore is no hero. He’s an oddball and a zealot.
Second, the exemplary public servants during the recent Ten Commandments brouhaha have been the eight associate justices of the Alabama supreme court, Gov. Bob Riley, and Attorney General Bill Pryor.
Third, if Senate Democrats had any shame (which of course they don’t), they would, after observing Pryor’s performance under fire during this episode, have begun apologizing to Pryor for their mistreatment of his federal judicial nomination. And they would announce plans to end their filibuster and give him an up-or-down vote on the Senate floor.
As for Roy Moore, he’s usually not a bad judge in ordinary cases. But he has a messianic complex and a thirst for tactical martyrdom and the publicity it brings. For intelligent advocates of appropriate public displays of the Ten Commandments, Moore’s cause is the wrong case by the wrong man for the wrong legal arguments by the wrong methods. Conservatives can and should support the right of posting the Ten Commandments, but they should distance themselves from Moore’s particular example.
Three years ago, after first having seen him in full bizarro mode while making complicated legal arguments to the Mobile Register editorial board, I spent well over an hour alone with him in his local then-courtroom in Gadsden, Alabama, listening to him expound upon abstruse (but important) precepts of American law. In most respects, he is a conservative jurists’ dream, one who takes seriously original intent and strict attention to constitutional and statutory text.
But he has this trick, a freak of memorization ability, that allows him to recite huge passages from memory. I’d raise an issue, and he’d respond with about 800 words of direct quotation from some obscure writing of James Madison. Another question would bring an equally long citation from the Bible or from an opinion by a federal district judge in Mobile. When asked for a copy of whatever document he was quoting from, he would quickly find it in one of the many books in his office, buzz his secretary, and ask her to Xerox it. The copy invariably proved his memory unerring.
Oddly, though, as he neared the end of every recitation, his cadence would speed up and the words become less distinct, somewhat like somebody on the 48th of a set of 50 Hail Marys. At least that was better than when under fire before the editorial board, when the words rantogethersofasthewouldsound as indecipherable as somebody speaking in tongues.
Clearly, this is a man whose sense of proportion is a bit on the freakish side.
In the matter of the Commandments, his original fame grew from a small and dignified wooden plaque he hung in his local courtroom. Conservatives were right to find it unremarkable and constitutionally acceptable, even praiseworthy. And the activist Left was foolish to make Judge Moore a hero by challenging the innocuous display.
But when he was elected chief justice by riding the earlier Ten Commandments flap like Ron Turcotte on Secretariat, it was clear that he was aiming for more widespread personal glory.
The 5,280-pound monument, placed in the state Judicial Building in the dead of night (with an evangelical camera crew to record it for posterity and a curious copyright stamp at its base, for what future commercial purpose isn’t clear), is actually quite handsome — but so large and so prominent as to command attention. For federal courts that insist that the constitutionality of even quasi-religious displays depends in large part on their context and their intent, this monument clearly was pushing the envelope.
But Chief Justice Moore made matters worse. Rather than accept an offer from Gen. Pryor to have the state AG’s office argue in favor of the Commandments on reasonable and responsible grounds, Moore insisted on hiring outside attorneys and on making sweeping and grandiose legal arguments sure to be rejected. No need for detailed legal quotations here. The upshot of Moore’s court filings was twofold: first, that the monument did indeed carry what any rational person would call a specifically faith-centered message at least bordering on “establishment” of religion — namely, that it was “an acknowledgement of God” as the source of all justice; second, that he as chief justice of Alabama was personally not subject (at least in First Amendment cases) to the dictates of a federal court.
Furthermore, the chief justice failed on several occasions to file legal motions in a timely fashion. And he did not formally appeal the injunction to move the monument. In a letter to a state legislator, Gen. Pryor explained what happened next: “[Moore and his attorneys] belatedly asked the district court to stay its injunction … The district court denied this request on the grounds that the injunction had not been appealed and that there was little, if any, likelihood that the petition for writ of mandamus or prohibition would be successful.”
In short, Roy Moore orchestrated the entirety of last week’s showdown so as to virtually guarantee the monument’s removal and his own martyr’s role in trying, supposedly valiantly, to stop the inevitable.
Make no mistake: Moore’s mastery of media manipulation has made him a folk hero to at least a strong plurality, quite arguably a solid majority, of Alabamians. In doing so, he put other state officials in a political vise. Several state supreme-court justices are facing reelection next year; Gov. Bob Riley is waging an uphill battle for a tax-reform package; and Bill Pryor needs all the home-state support he can get (not to mention that of national conservative activist groups) if he has any hopes of having his judicial nomination brought to a vote.
Nonetheless, all the officials did their duty. Directly assisted by Pryor, the other justices unanimously overruled Moore and ordered the stone’s removal. As Pryor explained: “I continue to believe that the Ten Commandments are the cornerstone of our legal heritage and can be displayed constitutionally as they are in the building of the Supreme Court of the United States… (But) the rule of law means that when courts resolve disputes, after all appeals and arguments, we all must obey the orders of those courts even when we disagree with those orders. The rule of law means that we can work to change the law but not to defy court orders.”
Gov. Riley, while also insisting that a Ten Commandments display should be constitutionally acceptable, likewise added this: “Because we are a society of laws, the Alabama Supreme Court has a duty to comply with the federal court order, whether they agree with it or not. … Attorney General Bill Pryor should be commended for showing similar resolve to ensure that the rule of law prevails in Alabama.”
All of which, of course, once again gives the lie to the Senate Democrats’ nasty smear that Pryor’s “deeply held beliefs” would get in the way of him faithfully applying laws and precedents with which he disagrees. Pryor already has proven himself in that regard many times over, of course — but in this case he did it so courageously, while enraging so many of his core supporters, that he has exploded the last remaining shreds of his leftist critics’ credibility.
The Washington Post editorialists, for instance — who have been particularly vicious toward Pryor — scored Pryor back on August 11 (before Chief Justice Moore announced that he would defy the court order) for having “not troubled himself to say a word in defense of the rule of law.” Never mind, of course, that Moore had not yet given Pryor occasion to do so.
In a later editorial blasting Moore, the Post did note that Pryor had indeed refused to come to Moore’s defense — but without acknowledging its own earlier error in questioning Pryor’s integrity.
As of Friday afternoon, Moore had been suspended (with pay) from the bench, pending a trial before a state judicial ethics board. Pryor will have the unfortunate duty of prosecuting the case against him. There is little doubt that the AG will do so with vigor and honor — and little doubt that the Left will give him no credit for it, even as he further alienates his own base of support within Alabama.
Conservatives, therefore, should take two lessons from the Alabama Ten Commandments flap. First, they should specifically not make Moore a cause celebre. If they want the U.S. Supreme Court to allow courtroom displays of the Ten Commandments, the Alabama case is by far the weakest one they could possibly present to swing justices Anthony Kennedy and Sandra Day O’Connor.
Second, conservatives should rally even more strongly behind the federal appeals-court nomination of Bill Pryor, a man with the courage of his convictions, a marrow-deep respect for the rule of law, and an unfailing willingness to put his political interests aside in favor of his sworn duty to uphold the Constitution of these United States.
— Quin Hillyer is an editorial writer and columnist for the Mobile Register.