In just a few days, Donald Trump will be inaugurated as president, and shortly thereafter, whether it’s hours or days, his first nomination to the U.S. Supreme Court is expected.
One name that’s been in the discussion has been William Pryor of the 11th Circuit Court of Appeals.
Amid reports that Trump met with Pryor over the weekend, both critics and supporters of the judge suddenly are becoming more vocal.
WND reported over the weekend that the Washington, D.C.-based non-profit Judicial Action Group found an “objective review of Judge Pryor’s decisions in Glenn v. Brumby and Keeton v. Anderson-Wiley leads to the conclusion that he has failed to interpret the Constitution as the framers intended.”
“Accordingly, he lacks support from many conservative leaders who, like President-elect Trump, believe that Justice Scalia’s seat must be filled with a nominee who has a deep record of commitment to the Constitution.”
The Glenn case centered on a claim by a man who wanted to be a woman that he suffered discrimination when he dressed as a woman and went to the office, a move his supervisor perceived as disrupting operations. The organization reported that in the Glenn case, Pryor “concurred with the court’s opinion to create a new transgender right to employment and bathroom nondiscrimination.”
But Pryor offered “no analysis of the text of the law or constitutional provisions and failed to cite one case of binding precedent from either the U.S. Supreme Court or the United States Court of Appeals for the Eleventh Circuit.”
Specifically, Pryor concluded that the right should be created even though not one of the 16 Supreme Court cases cited addressed “transgenders.” Nor was there any precedent in the 11th Circuit.
“Pryor’s vote in Glenn is the best evidence of how he would vote on the Supreme Court. In most lower court cases, judges vote consistently with binding precedent even if it is not the precedent they would create. However, in the Glenn case there was no binding Supreme Court and Eleventh Circuit precedent on ‘transsexual rights,’ which makes the case analogous to a Supreme Court case and, therefore, highly indicative of how Pryor would vote on the Supreme Court,” the action group found.
Read the history of the attacks on marriage and the family, from the days of Karl Marx and Margaret Sanger to those now pushing for mandatory recognition of same-sex “marriage,” in “Takedown: From Communists to Progressives, How the Left has Sabotaged Family and Marriage.”
Pryor supported the result in the Keeton case in which Augusta State University expelled a female Christian student for refusing to engage in a “remediation” plan imposed because of her conservative and religious views on homosexuality.
On Monday, an organization called the Personhood Alliance, a pro-life organization, cited the same cases in contending Pryor would not meet the requirements already established by Trump that his nominee be in the mold of Scalia.
“Not only did Judge Pryor personally prosecute Alabama Judge Roy Moore over his display of the Ten Commandments as attorney general of Alabama,” said Daniel Becker, founder of Personhood Alliance, “but once he became a federal appeals judge, he issued rulings extending special rights to transgender people while refusing to recognize the religious liberty rights of Christians.”
William Pryor is no Scalia by Joseph Farah
The organization said the “comparison between Judge Pryor and Justice Scalia couldn’t be starker.”
“In Obergefell, Justice Scalia refused to go along with the majority’s opinion mandating same sex marriage. Yet several years before Obergefell, in two cases decided on the same day in 2011, Judge Pryor as an Eleventh Circuit judge voted (1) that the Equal Protection Clause required reinstatement of a male employee who had been fired for wanting to appear at work dressed as a woman and (2) that a state university did not violate the speech or religious rights of a Christian student who was expelled from a graduate counseling program for refusing to submit to homosexual indoctrination.”
Likewise, concern was expressed by WND CEO, columnist, author and Editor-in-Chief Joseph Farah.
“Let’s hope the reports Donald Trump has his nominee to replace Justice Antonin Scalia down to two choices – Judge William H. Pryor of the U.S. Court of Appeals for the 11th Circuit and Judge Diane Sykes of the 7th U.S. Circuit Court of Appeals – represent nothing more than ‘fake news,’” he wrote.
“I can tell you without equivocation that Pryor is an establishment hack – more in the John Roberts mode than Scalia,” Farah wrote.
“Let’s go back to 2003 when, as Alabama state attorney general, he prosecuted the state’s Supreme Court chief justice, Judge Roy Moore, for following the dictates of his conscience in upholding the inspiration of the Ten Commandments, the very foundation of our moral law, thus removing him from office. The charge was violating judicial ethics, an accusation from a radical-left organization. Moore had broken no laws in the state of Alabama or the United States of America. He had faithfully upheld his oath to the constitutions or Alabama and the U.S. Instead, he had defied an illegal injunction by a federal judge, Myron Thompson, to remove a Ten Commandments display.”
He noted that the U.S. Supreme Court ruled in 2015 that a Ten Commandments monument on the grounds of the Texas State Capitol was constitutional and that the U.S. Supreme Court chamber itself has a display of the Ten Commandments on the ceiling.
“Does anyone, Donald Trump included, think Antonin Scalia would hold that Judge Roy Moore should have been removed from office for displaying the Ten Commandments? If not, then we should agree that the man who prosecuted Roy Moore for defying that illegal federal court order as a judicial ethics violation is hardly worthy of replacing him on the high court,” he said.
Scotusblog profiles Pryor with information about many of his key decisions, including conservative causes such as enforcing criminal law, capital cases, immigration and civil rights.
But the blog also confirms his pro-LGBTQ votes in several key cases. In one of those, it explains, Pryor “discussed the evolving view of homosexuality in the psychiatric profession.”
But there are supporters for Pryor as well.
At the American Spectator, columnist Quin Hillyer wrote that he wasn’t endorsing Pryor “as the single best choice” but believes he should be among the finalists.
He argues that Pryor was simply doing his job to prosecute Moore for acknowledging the Ten Commandments, the foundation of American law, in the Alabama courthouse. Moore had been removed from his job as chief justice of the state Supreme Court for installing the monument.
Voters in the state later snubbed the federal judiciary by re-electing Moore to the same post.
Hillyer noted that Pryor was praised by the chairman of the Alabama Democrat Conference back in 2003 and promoted by President Obama to the bipartisan United States Sentencing Commission.
“Moore’s allies who still hold a grudge against Pryor should realize that 13 years is too long to remain furious at a man who was just doing his duty as he honestly saw it.”
CNN, meanwhile, reported that Trump’s team is considering what it will take to get a nominee approved by the U.S. Senate, including the idea of changing the rules, as the Democrats did when they were in the majority, to allow a winning vote on a 51-49 majority, not the 60-vote supermajority that now would be required.
During the campaign, Trump released a list of possible nominees to the U.S. Supreme Court, promising to pick a candidate in the mold of Scalia, whose voice probably never was stronger than in the Obergefell decision in which five other members of the court created – critics say out of thin air – the right to homosexual “marriage.”
Scalia said the five robbed citizens of their rights.
“Today’s decree says that my ruler, and the ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court,” Scalia wrote.
“The opinion in these cases is the furthest extension in fact – and the furthest extension one can even imagine – of the court’s claimed power to create ‘liberties’ that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the people of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”
Scalia pointed out, in support of traditional marriage and conservative beliefs: “When the Fourteenth Amendment was ratified in 1868, every state limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision – such as ‘due process of law’ or ‘equal protection of the laws’ – it is unquestionable that the people who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification.
“We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the amendment’s ratification,” he wrote.
He blasted the bare majority of five justices, saying, “A system of government that makes the people subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”
At issue is the growing progressive bent of the Supreme Court, with the expectation Hillary Clinton, as president, would have followed the lead of President Obama in appointing justices like Elena Kagan and Sonia Sotomayor, who voted to create same-sex marriage despite the Constitution’s silence on the issue.
In fact, Kagan had publicly endorsed the idea while the issue was pending before the court by performing same-sex “weddings.” She then refused a request to recuse herself from the case because of her bias.
For now, the high court generally is split 4-4 ideologically. Critics fear that the wrong appointee could actually facilitate the demise of, for example, the Second Amendment.