Five Things to Know About SCOTUS Short-Lister Pryor

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By Patrick Gregory

Dec. 6 — Eleventh Circuit Judge William H. Pryor will likely face a tough confirmation fight if President-elect Donald Trump nominates him to the U.S. Supreme Court.

It wouldn’t be the first time. The former Alabama attorney general endured a lengthy and divisive path to the bench.

Now he’s a rumored front-runner among Trump’s short list of potential high court nominees. Trump has said he’ll choose someone from his list to replace Justice Antonin Scalia, who died unexpectedly Feb. 13.

If he’s nominated, his past remarks concerning abortion and gay rights could again be the focus of the confirmation hearings.

1) Rumored Front-Runner

At a Republican presidential debate in February, Trump said that “we could have a Diane Sykes, or you could have a Bill Pryor—we have some fantastic people.”

In November, those two still appeared to be front-runners in the minds of conservative legal experts at a Federalist Society convention, according to a National Review story.

Conservatives see Pryor and the Seventh Circuit’s Sykes “as strict originalists who carry no risk of a David Souter-like transformation once appointed to the high court,” the story said.

Justice David H. Souter was appointed by Republican President George H.W. Bush but voted reliably with the high court’s liberal justices.

2) Grueling Confirmation

Pryor’s last confirmation process took years.

His own criticism of Souter was a point of contention at his 2003 Senate confirmation hearing.

Then-Alabama Attorney General Pryor said in a 2000 speech to the Federalist Society, “Please, God, no more Souters.”

Based partly on that statement, Sen. Charles E. Schumer (D-N.Y.) said at the 2003 hearing, “If Bill Pryor becomes a judge, it seems hard to believe he will be a moderate.”

Democrats’ staunch opposition to Pryor led President George W. Bush to use a recess appointment to place him on the Eleventh Circuit in 2004.

The Senate confirmed Pryor in 2005, with 45 Senators, including three Republicans, voting against confirmation.

3) Abortion, Gay Rights Stances

Pryor’s stances on abortion and gay rights also made his confirmation more difficult.

His description of the landmark abortion-rights decision in Roe v. Wade, 410 U.S. 113 (1973), as “the worst abomination of constitutional law in our history” was a cause for concern, Schumer said in 2003.

Pryor also described Roe as a creation “out of thin air of a constitutional right to murder an unborn child,” Schumer said.

Further, Pryor defended an Alabama law that criminalized sodomy, in an amicus brief he filed as Alabama attorney general on behalf of three states in Lawrence v. Texas, 539 U.S. 558 (2003).

He “equated gay sex with prostitution, adultery, necrophilia, bestiality, possession of child pornography, incest and pedophilia,” Schumer said.

“On gay rights the Attorney General believes it is constitutional to lock up gays and lesbians for having intimate relations in the privacy of their own homes,” Schumer said.

However, this week Pryor wrote an opinion for the Eleventh Circuit finding that a middle-school gay-straight alliance could sue the public school board that rejected its application for recognition, in Carver Middle Sch. Gay-Straight All. v. Sch. Bd. of Lake Cty., Fla., 2016 BL 405072 (11th Cir. Dec. 6, 2016) (see related story).

4) Civil Rights Record Defended

Rep. Jo Bonner (R-Ala.) defended Pryor’s civil rights record at his confirmation hearing.

He assisted the U.S. Attorney’s Office in prosecuting Ku Klux Klan members for the 1963 bombing of the 16th Street Baptist Church, which killed four young black girls, Bonner said.

Two of the KKK members were convicted in 2001 and 2002.

Pryor also authored state legislation making cross-burning a felony.

Further, he was the sole white statewide official to campaign for repealing the interracial marriage ban in the Alabama Constitution.

More recently, Pryor joined a 2011 decision finding that discriminating against a person based on gender nonconformity constitutes sex discrimination under the 14th Amendment’s equal protection clause, in Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011).

5) Ten Commandments Fight

Pryor, who is Catholic, faced in 2003 what he described as a “potential conflict of moral and legal duties,” he wrote in Moral Duty and the Rule of Law, 31 Harv. J.L. & Pub. Pol’y 153 (2008).

Then-Chief Justice Roy Moore of the Alabama Supreme Court refused to comply with a federal injunction requiring removal of a Ten Commandments monument from the Alabama Judicial Building.

Moore’s supporters argued that there was “a moral duty to acknowledge God” by disobeying the injunction, Pryor said.

As attorney general, Pryor publicly disagreed with Moore and helped the Alabama high court’s associate justices “in ensuring compliance with the injunction,” he said.

The state judicial inquiry commission filed misconduct charges against Moore, and “I personally prosecuted” them, Pryor said.

“During the controversy, I explained that the Christian duty to obey the government and its laws is clearly expressed in the New Testament,” which commands to “give to Caesar what is Caesar’s, but give to God what is God’s.”

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.

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