Bench Memos

Law & the Courts

In Defense of Judge Pryor

In the original version of a Corner post last Friday, Tim Alberta stated that Judge Bill Pryor’s 2003 nomination to the Eleventh Circuit had been controversial because Pryor had “equated same-sex relations with bestiality.” That post also stated that Pryor “stood by” that comment at his confirmation hearing.

Two hours after Alberta’s post went up, Ramesh Ponnuru gently explained why Alberta’s account was clearly wrong. But no change was made to Alberta’s post until the last day or so (when no one scrolling the Corner would likely run across it). Even then, the new version of the post states merely that “Senate Democrats initially refused to confirm [Pryor], horrified that he had, in their view, equated same-sex relations with bestiality (a charge disputed by some on the right, Ramesh included).” (Emphasis added.)

Expanding on Ramesh’s post, I’d like to set the record straight:

1. In 2003, the states of Alabama, South Carolina, and Utah submitted an amicus brief in Lawrence v. Texas that defended the constitutionality of laws prohibiting homosexual sodomy. As the attorney general of Alabama, Bill Pryor authorized his name on the brief (and thereby embraced the arguments in it). That brief states (on p. 25):

Petitioners’ protestations to the contrary notwithstanding, a constitutional right that protects “the choice of one’s partner” and “whether and how to connect sexually” must logically extend to activities like prostitution, adultery, necrophilia, bestiality, possession of child pornography, and even incest and pedophilia (if the child should credibly claim to be “willing”). [Emphasis added.]

2. As the “must logically extend” phrase makes crystal clear, Pryor’s argument is one of principle: It points out the objectionable consequences of the principle advanced by the other side. It is, in common parlance, a slippery-slope argument.

Pryor clearly isn’t “equating” same-sex relations with bestiality (or with necrophilia or incest or anything else on the list). He’s arguing, rather, that the principle on which homosexual sodomy would be constitutionally protected would also mean that all those other things would also be protected. (There are, to be sure, intelligent ways to try to contest his argument, but complaining that he is “equating” same-sex relations with those other things is not one of them.)

3. In sum, the charge that the Left made against Pryor during the battle over his Eleventh Circuit nomination is not merely “a charge disputed by some on the right.” It is a charge that no intelligent and fair-minded person should credit or parrot.

4. It’s worth highlighting that when seven Democrats joined with seven Republicans back in 2005 to forge the Gang of 14 Agreement, they agreed specifically to support cloture on Pryor’s nomination and they agreed generally to support filibusters of judicial nominees only in “extraordinary circumstances.” Among the seven Democrats was Daniel Inouye, who had been one of only 14 senators to vote against the Defense of Marriage Act. It is farfetched to think that Inouye or (to mention a couple of the other Democratic signatories) Joe Lieberman or Mary Landrieu would have taken this view of Pryor’s nomination if they somehow had been confused enough to believe that he had “equated” same-sex relations with bestiality.

* * *

For what it’s worth, among the many outstanding candidates on President-elect Donald Trump’s long list of potential Supreme Court nominees, I have no interest in publicly favoring one candidate over another. But the Left is sure to resort to its usual tactic of making false and inflammatory charges, and no one should be complicit in abetting it.

[Cross-posted on The Corner]

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