The day after Election Day, I opined that Senate Majority Leader Mitch McConnell should immediately nuke the SCOTUS filibuster and nominate Eleventh Circuit U.S. Court of Appeals Judge William (“Bill”) Pryor for the seat left vacant by the untimely death of legal colossus Antonin Scalia and kept in conservative hands by Senate Republicans’ remarkably well-executed ploy to put a complete kibosh on President Barack Obama’s Merrick Garland nomination. Though I have long maintained that Trump’s Heritage Foundation- and Federalist Society-compiled SCOTUS nomination list is undeniably a good one, I explained why I, personally, would give the nod to Judge Pryor:
Pryor is personally pro-life without exception, and has described Roe v. Wade as “the worst abomination in the history of constitutional law.” He even doubled down on defending that prior-held belief, at his hotly contested appellate court confirmation hearing:
“I stand by that comment,” Pryor said. “I believe that not only is [Roe] unsupported by the text and structure of the Constitution, but it has led to a morally wrong result. It has led to the slaughter of millions of innocent unborn children.”
Pryor is properly skeptical of the legal malarkey (however one feels on the underlying policy merits) of the landmark Miranda v. Arizona case—thus evincing his willingness to flout flawed legal precedent and stare decisis norms, even in the context of a nearly-unanimously popular underlying policy—and is properly skeptical of most Eighth Amendment challenges. He has upheld voter ID legislation, and can be more generally counted upon for all the constitutional issues near and dear to the hearts of conservatives: Second Amendment rights, religious liberty, structural federalism, and others. In the realm of statutory interpretation, he is a reliable textualist. And, largely due to his comments on abortion during his confirmation hearing, his nomination would be a delectably aggressive culture war salvo against a vapid and sclerotic progressivism that was just electorally obliterated last night.
To be clear, I think it is hard to go wrong in picking virtually any of the jurists from Trump’s list with whom I am familiar. But with Tim Alberta of National Review reporting from the 2016 Federalist Society National Lawyers Convention about an emerging consensus of a final showdown for Scalia’s seat between Pryor and Seventh Circuit U.S. Court of Appeals Judge Diane Sykes and numerous well-connected friends of mine in the legal conservative movement saying much the same thing (with an occasional third or fourth name added to the list), I want to circle back to say a bit more about Bill Pryor.
Pryor is oftentimes considered the single most rock-ribbed originalist, juridically principled stalwart on Trump’s list. Here was Alberta, in the aforementioned National Review piece:
[Pryor’s] ideological mooring makes him hugely appealing to elements of the conservative movement who have felt betrayed by Chief Justice John Roberts and are looking for the next Republican nominee to be an absolute slam-dunk. Pryor would certainly be that: He famously once ended a prayer by saying, “Please, God, no more Souters.”
To be sure, pro-lifers could hardly dream of a more ideal jurist to replace Scalia. Which is what makes it somewhat odd that there presently exists in some pockets of the conservative movement a campaign to derail Pryor’s SCOTUS nomination not on the political optics, but on the juridical merits. Erick noted as such two weeks ago:
Pryor, who succeeded Jeff Sessions as Alabama’s Attorney General once Sessions got to the Senate, is well connected within conservative circles, is well liked by the future United States Attorney General [Jeff Sessions], and is considered one of the most conservative appellate judges in the country.
Several people have raised concerns about some of Pryor’s cases due to his rulings on gay rights and transgender issues, but his defenders say he was bound by clear precedent, which he would not be on the Court.
Due to the nature of issues involved, the pushback is naturally coming from some in the conservative religious liberty community. This is somewhat ironic, given Pryor’s personally devout Catholicism and incontrovertible pro-life bona fides, but here we are anyway.
The two main Eleventh Circuit cases from Pryor’s judicial record that seem to be raising controversy, as far as I understand it, are Glenn v. Brumby (2011) and Keeton v. Anderson-Wiley (2011). The Glenn case, which you can read a bit more about here and here, relied on U.S. Supreme Court precedent to effectively hold that discrimination based on transgender status must trigger heightened judicial scrutiny under the Fourteenth Amendment’s Equal Protection Clause. Keeton involved the question of whether a faithful Christian student at a public university could be forced to undergo diversity/sensitivity training in order to affirmatively preclude her from disseminating to fellow students her belief in the inherent immorality of homosexual conduct. The only other flaw from Pryor’s record that I keep on hearing referred to is the fact that, as Alabama Attorney General, he led the prosecution against Alabama Supreme Court Chief Justice Roy Moore back in 2003 after Moore defied a federal court order by failing to remove a Ten Commandments plaque from his courthouse.
An in-depth statutory/constitutional analysis of either the Glenn or Keeton ruling is beyond the scope of this post, but, suffice it to say that from even a cursory view of the applicable case law, there is a plausible argument that Judge Pryor may have been bound in each case. (Note here that I am holding aside my own view—an admittedly fringe one—adopted from the University of St. Thomas School of Law’s Michael Stokes Paulsen, which posits that lower court judges are not only not bound by higher court precedent, but that it is actually a violation of a federal judge’s oath of office to willfully eschew principled statutory/constitutional exegesis in a given case in order to blindly follow stare decisis precedential norms.) Readers interested in more than that should feel free to peruse Glenn and Keeton for themselves and assess whether they find either opinion particularly compelling.
Insofar as the Roy Moore kerfuffle is concerned, it is important to point out that Pryor’s involvement in prosecuting the case, as the then-Alabama Attorney General, was involuntarily thrust upon him. Furthermore, while I am personally as passionately anti-judicial supremacy as they come and thus am very sympathetic to his critics’ broader point on this, we must pragmatically understand that there is a salient distinction between (1) loftier, more abstract criticism of judicial supremacy and (2) actual repudiation of it in legal practice. To be most blunt and pragmatic about the situation, choosing not to enforce a judicial order as an executive branch official (such as Alabama Attorney General, which Pryor was at the time) is a really big deal. Again, I proudly stand with Lincoln and agree that the executive possesses this independent interpretive prerogative, but I find it hard to fault those who may not agree—as a matter of prudence—with a specific ad hoc invocation and application of the power. Thus, while the Moore kerfuffle is hardly Pryor’s proudest moment, it is really quite difficult to harp on him too much for it, either.
More generally, of course, it is simply the case that even the best of judges (unless your name is Clarence Thomas, perhaps) will occasionally err. If Pryor is indeed tapped, I would hope that Sen. Mike Lee or Sen. Ted Cruz might press further at his confirmation hearing for details as to Pryor’s decisions to sign onto the court’s opinions in Glenn and Keeton. But we are likely deluding ourselves if our nomination standard is to pick someone with literally zero question marks on his/her resume.
Furthermore, Pryor’s Eleventh Circuit judgeship nomination would be, as I said in my post-Election Day post, a “delectably aggressive culture war salvo against…vapid and sclerotic progressivism.” Large swathes of the Left despise Bill Pryor, largely due to the tenacity he displayed at his Eleventh Circuit confirmation hearing in doubling and tripling down on his beliefs as it pertains to both abortion jurisprudence and abortion itself. Pryor has demonstrated that he has the willpower and perseverance to withstand a concerted Leftist/MSM borking effort.
Here is a message I recently received from a staunch conservative friend who him/herself clerked on the U.S. Supreme Court, knows Judge Pryor personally, and is fed up with the current campaign by some to derail his chances of being nominated to the highest court in the land:
It amazes me that when there is a Supreme Court vacancy, many people I regarded as legal conservatives show their true colors. Right now, several are engaged in whispering campaigns against one of the most conservative names on Trump’s list—William Pryor. This fifth column has misrepresented opinions of this great judge to accuse him of being insufficiently conservative, while championing other judges who have never actually been tested by the Left. What gets me the most is how these same people spend zero time scrutinizing the opinions of the judges they allege are better picks than Pryor—where they will find serious and systemic weaknesses if they even bother to look. But, at bottom, we need a Supreme Court justice who is not going to care about what the Left says about them. The best indicator of who our best pick would be is the apoplexy of the Left at the prospect. That is why our best pick is Judge Pryor.
Trump’s SCOTUS list is, by any measure, genuinely excellent. The individuals on the list are, by and large, truly principled jurists. But judges are also human beings who will inevitably have resume items deserving of close scrutiny/follow-up, and we ought not to let the legitimately pristine be the enemy of the very, very, very good. I’d still personally nominate Bill Pryor for Antonin Scalia’s SCOTUS seat.