Sam Heldman on Bill Pryor's record as Alabama attorney general: From the moment President Bush nominated Bill Pryor to be a judge on the Eleventh Circuit, one blogger,
Sam Heldman, has been rather exercised. Here's some of his "greatest hits" against Pryor (as he likes to refer to them):
1.
On September 13, 2002, Heldman notes that he finds it "somewhat appalling" that Pryor's attorney general web site contains an "other links" section for "public policy on the web" with links to the following organizations: The American Center for Law & Justice; The American Center for Law & Justice for Alabama; The American Enterprise Institute; American Legislative Exchange Council; The Heritage Foundation; The Federalist Society; Family Research Council; Institute for Justice; Justice Fellowship; National Rifle Association; National Right to Life; Of the People; The Rutherford Institute; and the Washington Legal Foundation. In all fairness, however, Sam does indicate that General Pryor's decision to link to these conservative sites is "probably not illegal I suppose" (keep in mind now that this guy is a lawyer).
2.
On October 31, 2002, Heldman criticizes Pryor for appealing a ruling striking down as unconstitutional Alabama's anti-vibrator law, which he describes as "a nutty waste of public resources." Helman goes on to note that he cannot "imagine any plausible argument that the public will be well served by this appeal, successful or not." Gee, I can think of a reason Sam. Maybe, just maybe, General Pryor was concerned about the further expansion of the so-called constitutional right to privacy, which is often used by the judiciary (state and federal) to strike down any law with which a handful of judges may disagree. Here's a news flash Sam, state legislatures have the right to pass stupid laws. Moreover, state attorney generals have the right to be concerned when judges strike down laws, even those that don't pass your enlightened legislation test, on the basis of an illegitimate constitutional doctrine. The Supreme Court may recognize a constitutional right to privacy, but it is not "a nutty waste of public resources" for a state attorney general to advocate a narrow construction of that right when further expansion of the right will unquestionably interfere with a state's ability to govern matters at the local level.
3.
On February 22, 2002, Heldman writes that Pryor is "very much an ideologue and an extremist." He goes on to note that:
"It will be interesting to see if the White House actually does nominate him. If it does so, then all of the excuses that are now so much in vogue as to the nominations of people like Sutton and Estrada -- 'I don't really have any views on that', or 'I was only representing my client' -- simply will not wash. As Attorney General, Pryor has been the client as well as the lawyer. When the State of Alabama has taken positions in the Supreme Court, as a party or as amicus, it has been because Pryor believed those positions and decided that the funds and prestige of the State of Alabama should be used to advance those positions. When the State of Alabama has taken positions in the Eleventh Circuit, it has been because Pryor believed those positions and believed that the Eleventh Circuit was free to agree with him, given the current landscape of Supreme Court precedents -- which is to say that it can reasonably be inferred that everything the State of Alabama said in a brief to the Eleventh Circuit, is how Pryor would have voted had he been a judge on that court. If this nomination does in fact occur, there is an undeniable paper trial miles long and yards wide; and Pryor is on public record as believing that Senators have the duty to scrutinize, and vote based upon, a judicial nominee's ideology. Hold on to your hats, if this nomination comes to pass."
Although I agree with Mr. Heldman that General Pryor's record is undeniably conservative, I am, quite frankly, somewhat taken aback by his assertion that because Pryor advocated a position as a state attorney general "it can reasonably be inferred that everything the State of Alabama said in a brief to the Eleventh Circuit, is how Pryor would have voted had he been a judge on that court." This is utter nonsense. Indeed, Pryor may have taken a position in the 11th Circuit contrary to Supreme Court precedent hoping that the Supremes would eventually grant cert. and reconsider a prior holding (something that has been known to happen).
4.
On April 11, 2003, Heldman encourages his readers to "oppose [Pryor] even if your politics are much more centrist than mine," and links to a an amicus brief Pryor filed (along with the AGs of Utah and S.C.) in Lawrence v. Texas, which includes, as Heldman describes it "his vigorous defense of the proposition that gay oral sex has detrimental 'spiritual' effects in addition to emotional and psychological ones." Heldman goes on to note that "[t]he prohibition of gay sex acts was so important to him that not only did he inject himself into the case by filing an amicus brief, but even asked the Supreme Court for permission to have someone argue on behalf of Alabama when it became clear that Texas's lawyer wasn't going to do a very good job." He then concludes by noting that "[t]his is the sort of aggressive activism that is [Pryor's] hallmark."
These comments are, to say the least, disingenuous. I will let my readers draw their own conclusions on the content of the amicus brief (which you can access
here), but here's an general overview of Pryor's position in Lawrence:
The Constitution Does Not Contain an Express or
Implied Right to Engage in Homosexual Sodomy
A. Only activities historically considered beyond
the reach of government regulation are
protected by the Due Process Clause of the
Fourteenth Amendment
B. The non-textual fundamental rights that this
Court has recognized in the Due Process
Clause of the Fourteenth Amendment have
protected marriage, child-bearing, and the
family — not extramarital sex, and certainly
not homosexual sodomy
II. The Choice to Engage in Homosexual Sodomy (As
Opposed to the Inclination) Is Not a Suspect
Classification Under The Equal Protection Clause
of the Fourteenth Amendment
III. Recognizing a Fundamental Constitutional Right
to Engage in Homosexual Sodomy Will Damage
the Legitimacy of this Court and Enshrine a
Dangerously Expansive Concept of Individual
Freedom
One would have thought that Heldman, based on his February 22, 2003 post, would have applauded General Pryor for defending Supreme Court precedent (Bowers). :)
5. Finally,
on April 13, 2003, Heldman posted his most lengthy criticism on the Pryor nomination. Specifically, he attacked Pryor for the "interjection of himself into the Bush v. Gore battle," linking to the two amicus briefs that Pryor filed with the
Eleventh Circuit and the
Supreme Court. What Heldman does not mention is that on the first hearing of the Bush/Gore recount litigation before the Supremes three amicus briefs were filed by state attorneys general. In addition to the brief submitted by Pryor (in support of the position taken by Bush's lawyers),
three Republican state attorney generals from Nebraska, South Carolina, and Virginia also filed a brief in support of the Bush position, and FOURTEEN Democratic state attorney generals filed a brief in support of the position taken by Gore's legal team which you can access
here.
Now, I am not going to get into the merits of the positions taken by either side (which have been discussed ad nauseam). But I do find it interesting that Heldman would omit from his criticism any mention of these other briefs. Indeed, he suggests the exact opposite to be true, noting:
"Other Attorneys General presumably understood the crucial necessity of not adding to the public perception that partisan manouevering [sic] was at work in the Supreme Court litigation; the sight of Attorneys General filing briefs galore in the Supreme Court, depending on their own preferences for the outcome of the Presidential election, would have been too much to bear. Pryor was, it seems, the only Attorney General who did not feel it appropriate to sit this one out in the Supreme Court."
In truth, the reason the attorneys general who participated during the first round of litigation declined to participate in the second round probably had more to do with with the fact that they were unable to meet the 24 deadline for filing briefs. Thus, while it is true that Pryor was the ONLY state attorney general to file an
amicus brief during the second round of Bush v. Gore before the Supreme Court , I think that's a plus rather than a negative. Whether or not you agree with the position taken by Pryor, the fact that his office was able to put together a high quality brief in such a short period of time is quite impressive.
Given Heldman's selective recitation of the record in the Bush v. Gore litigation, I think it is "fair to wonder" whether Heldman can "truly be trusted" to offer legitimate criticism of the Pryor nomination.
If you want an accurate description of Pryor's record and abilities, read the following articles:
(1)
Pryor's record: Ammunition or affirmation? ; and
(2)
Pryor is a man to be respected as a judge
