Schumer Statement on the Nomination of Willam H. Pryor to the 11th CIrcuit

SCHUMER: IDEOLOGICAL WARRIOR SPELLS TROUBLE FOR COURT

Schumer statement on the nomination of William H. Pryor to the 11th Circuit

US Senator Charles Schumer made the following statement at the Judiciary Committee's consideration of the nomination of William Pryor:

Mr. Chairman, before we get started, I want to note that earlier this week the Senate confirmed Michael Chertoff to the 3rd Circuit Court of Appeals. Mr. Chertoff is the 128th judge confirmed by the Senate since President Bush took office. That's 128 confirmed of 130 who have come to the floor, a 99% success rate.

Hopefully, later today, we will confirm Richard Wesley from New York to the Second Circuit Court of Appeals. Judge Wesley is a model nominee. He's a conservative - no doubt about it - and based on the votes he took as a state legislator, it's a fair bet that he's pro-life, but he is well within the mainstream. His personal views are sufficiently moderate that they don't get in the way of his being a fair jurist.

I start by noting Richard Wesley, Michael Chertoff, and the remarkable success President Bush has had in getting his nominees through because from the hew and cry we hear from the White House and from across the aisle, you'd think those numbers would be reversed and that 99% of the nominees were stalled. That's 128 confirmed against two we are opposing on the floor. I note all of this not only to make sure the record is clear on that point, but to again state the obvious - when the President sends us nominees who are legally excellent, diverse, within the ideological mainstream, and who respect the Senate's Constitutionally-mandated co-equal role in this process, the nominees pass the Senate like a hot knife through
butter.

In reviewing the record of the nominee before us here today, I'm disappointed to say he looks more like the 9 nominees I personally have voted against than the 119 I have voted for. In some ways, that's unfair to the 9 I have thus far opposed, because, really, Attorney General Pryor looks like an amalgam of several of them.

On states' rights and women's rights, he looks a lot like Jeffrey Sutton and D. Brooks Smith. On choice and privacy, he looks a lot like Priscilla Owen and Carolyn Kuhl. On gay rights, he looks a lot like Timothy Tymkovich. On separation of church and state, he looks a lot like J. Leon Holmes and Michael McConnell. The list goes on and on.

In a way, his views are an unfortunate stitching together of the worst parts of the most troubling judges we've seen thus far.
The one nominee he does not seem to resemble is Miguel Estrada. Because while we know very little about Mr. Estrada's views, we know a lot about Mr. Pryor's and I expect he will, at the very least, answer our questions about those views.
It will not be enough for him simply to say, "I will follow the law." His beliefs are too well-known, too deeply held, and too clearly likely to influence how he judges. We all know that judging is not a rote process - if it were, we'd have computers on the bench instead of men and women in black robes.

There is a degree of subjectivity - especially in close cases and controversies on hot-button issues - and it's hard to believe that the incredibly strong ideology of this nominee won't impact how he rules if confirmed.

We'll get into much of this when we have the opportunity to question the nominee, but I just want to take a moment to review some of the more disturbing remarks Attorney General Pryor has made and some of the more worrisome positions he has taken.

As my colleagues here know, I have no litmus test when it comes to these nominees. Many if not most of this President's judicial nominees have been pro-life, but I have voted for almost all of them because I have been persuaded that they are committed to upholding the rule of law, and committed to upholding Roe v. Wade in particular.

I, for one, believe a judge can be pro-life yet be fair, balanced, and uphold a woman's right to choose. But for a judge to set aside his or her own personal views, the commitment to the rule of law must clearly supersede his or her personal agenda. That's a trick some can pull off, but not everyone can.

Judge Wesley, our Second Circuit nominee, has proven he can do it, but based on the comments Attorney General Pryor has made on this subject, I've got some real concerns that he cannot.

Mr. Pryor has described the Supreme Court's decision in Roe v. Wade as the creation "out of thin air [of] a constitutional right to murder an unborn child." He has said that he "will never forget January 22, 1973, the day seven members of our highest court ripped [up] the Constitution…." Mr. Pryor has said he opposes abortion even in cases of rape or incest and would limit the right to choose to narrow circumstances where a woman's life is at stake. He has described Roe as "the worst abomination in the history of constitutional law." Worse than Plessy v. Ferguson, worse than Dred Scott, worse than Korematsu.

It's a remarkable comment to make and I have to say, I respect Mr. Pryor for speaking his mind. But I am deeply concerned that any woman who comes before him seeking to vindicate her rights - her constitutional rights as defined by the Supreme Court - will have a tough time finding fairness with Bill Pryor.

But my concerns about this nomination hardly begin and end with the choice issue. On gay rights, he believes it is constitutional to lock up gays and lesbians for having intimate relations in the privacy of their own homes and has equated gay sex with prostitution, adultery, necrophilia, bestiality, possession of child pornography, incest, and pedophilia.
On criminal justice issues - where I tend to agree with my Republican colleagues more than most on this side of the aisle - he defended his state's practice of handcuffing prisoners to hitching posts in the hot Alabama sun for seven hours without giving them even a drop of water to drink, then criticized the Supreme Court when it held this practice violated the Eighth Amendment's ban on cruel and unusual punishment.

In criticizing the Court's decision, he accused the Justices of applying their "own subjective views on appropriate methods of prison discipline."

I'm all for being tough on crime, but it's not unreasonable to say that seven hours handcuffed to a hitching post in the Alabama summer sun without a drink of water is cruel and unusual. To accuse this not-so-liberal Supreme Court of imposing subjective views in a case that extreme, well, I'll just say it goes a bit far.

When it comes to separation of church and state, you have to be concerned as well.

Now, I agree that in some cases courts have gone too far - for example, I think the 9th Circuit went off the deep end in the
Pledge of Allegiance case. And I personally am a deeply religious man - I believe if we all behaved more in accord with traditional religious teachings, we'd have a much better, healthier, and safer country.

But the comments you've made, coming from someone who - if confirmed—will be sworn to uphold and defend the Constitution and sworn to protect the rights of all Americans - no matter their religious beliefs - well, they're quite troubling as well.

When it comes to states' rights, the record gets even more disturbing.

Attorney General Pryor has been one of the staunchest advocates of the Rehnquist's Court's efforts to roll back the clock not just to the 1930s, but to the 1880's. He is an ardent supporter of an activist Supreme Court's agenda cutting back Congress' power to protect women, workers, consumers, the environment, and civil rights.

As Alabama's attorney general, Mr. Pryor filed the only amicus brief from among the 50 states urging the Supreme Court to undo significant portions of the Violence Against Women Act. In commenting on that law, Attorney General Pryor said, "One wonders why [VAWA] enjoys such political support, especially in Congress…."

One wonders why VAWA enjoys such political support? How can one wonder why we'd want to protect women from violence? It's another shocking statement that's very difficult to understand.

Bill Pryor's ardent support of states' rights extends even to the realm of child welfare. At the same time that he was conceding that Alabama had failed to fulfill the requirements of a federal consent decree regarding the operation of the state's child welfare system, he was demanding that the state be let out of the deal.

It's not so much the position he took as the comments he made afterward. Attorney General Pryor said, "My job is to make sure that the State of Alabama isn't run by federal courts…. My job isn't to come here and help children."

When a state fails to satisfy the requirements of federal laws regarding the safety and welfare of children, I'd say the Attorney General's job is first to ensure the protection of those children, not to fight the involvement of a federal court. I don't see that as a controversial proposition, but Mr. Pryor apparently believes otherwise.

When it comes to the environment, we see more of the same concerns. Bill Pryor was the lone state attorney general to file an amicus brief arguing that the Constitution does not give the federal government the power to regulate intrastate waters that serve as a habitat for migratory birds. Mr. Pryor took this position despite decades of Supreme Court precedent and the federal Clean Water Act standing for the contrary proposition.

Some might think after hearing all of this that Mr. Pryor's states' rights advocacy knows no bounds.

Apparently, there is a limit.

Bill Pryor was the lone state attorney general to file an amicus brief supporting the Supreme Court's intervention in Florida's election dispute during Bush v. Gore.

Apparently, when he likes the outcome, he sides with the state's right, but when he doesn't like the outcome, he sides with federal intervention.

Contrast his approach in Bush v. Gore to what happened when it came to the push for the Supreme Court to limit application of the Americans With Disabilities Act to the states.

Mr. Pryor was the driving force behind the Garrett case in which a nurse contracted breast cancer, took time off to deal with her illness, and when she returned found that, in violation of the ADA, she had been demoted.

Attorney General Pryor believed the state university hospital where she worked had every right to do demote Ms. Garrett and managed to convince five justices on the Supreme Court to agree with him.

Mr. Pryor's antipathy for the ADA is obvious from the many extra-judicial comments he has made on the subject. At one point, he claimed that, "When Congress passed the ADA in 1990, all 50 states had laws on the books protecting the rights
of the disabled. Congress passed the ADA as a "me-too" approach, not as a way of protecting persons who were ignored or left behind."

I have to say, as someone who worked hard to get the ADA passed in the House, I find that comment offensive. I can only imagine what Senator Harkin would have to say to the nominee if he were asking questions here today.

Bill Pryor has praised every one of the Court's major states' rights and federalism decisions over the past decade, literally cheering as law after law protecting millions of Americans has been peeled off the books.

As he said two years ago in an address to the Federalist Society, federalism is a "subject that is near and dear to my heart and the heart of all members of the Society."

Just a year earlier, in another speech to the Federalist Society, Mr. Pryor made these remarks:

"We are one vote away from the demise of federalism. And in this term, the Rehnquist Court issued two awful rulings that preserved the worst examples of judicial activism: Miranda v. Arizona and Roe v. Wade…. Perhaps that means that our last real hope for federalism is the election of Governor George W. Bush as president of the United States, [since he] has said his favorite justices are Antonin Scalia and Clarence Thomas…. I will end [with] my prayer for the next administration: Please God, no more Souters."

I think that tells us a fair amount about where Mr. Pryor is coming from. If Bill Pryor becomes a judge, he will be no moderate - he will style himself after the most extreme and activist judges on the federal bench.

A few years ago, several of my colleagues on this Committee, including my good friend from Utah, opposed the nomination of another nominee to the 11th Circuit on the ground that she "would be an activist who would legislate from the bench."
I don't know how you can look at Bill Pryor's record and not come to that same conclusion.

I don't know if that's why he received a partial "not qualified" rating from the ABA or whether the ABA found something else to be concerned about, but, for me, this record screams "passionate advocate" and doesn't so much as whisper "judge".
Bill Pryor is a proud and distinguished ideological warrior. I respect him for it.

But ideological warriors - whether from the Left or the Right - are bad news for the bench. They tend to make law, not interpret law. And that's not what any of us should want from our judges.

Mr. Chairman, I'm looking forward to hearing Mr. Pryor address these issues and the other concerns we have, but I would just close by saying that this appears to be another nomination that will divide us, not unite us.

More than any administration in history, this White House is choosing judges through an ideological prism. I am disappointed that we have to continue fighting these nominees who are chosen more for their allegiance to a hardline ideological agenda than any other factor.

If we have a Supreme Court nomination later this summer, I really hope we see a nominee who looks a lot more like Richard Wesley - a nominee all 100 Senators could support - and a lot less like someone straight out of the Right Wing wheelhouse.
As everyone here knows, I believe in balance. If Mr. Pryor were nominated to a court with a heavy liberal tilt, I might view this nomination differently.

But Mr. Pryor has been nominated to the Fifth Circuit - already one of the most conservative courts in the country. And he may be more conservative than the most conservative judges already serving on this imbalanced court.

Mr. Pryor has a tough road to hoe here. He'll get a chance to make his case, but this is one of the most troubling records we've seen thus far and he has a long way to go before he'll convince me - and, I think, many of us - that he'll be a fair judge for all Americans.