Panel I of a Hearing of the Senate Judiciary Committee

HEADLINE: PANEL I OF A HEARING OF THE SENATE JUDICIARY COMMITTEE
 
SUBJECT: NOMINATION OF WILLIAM PRYOR JR. TO BE U.S. CIRCUIT JUDGE FOR THE 11TH CIRCUIT
 
CHAIRED BY: SENATOR ORRIN HATCH (R-UT)

WITNESSES: ATTORNEY GENERAL WILLIAM PRYOR JR. (R-AL)

BODY:
SEN. HATCH: Well, thank you, Senator.

We'll turn to Senator Durbin now.

SEN. RICHARD DURBIN (D-IL): Thank you very much, Mr. Chairman.

General Pryor, thank you for being here. A number of people have characterized your political philosophy. How would you characterize it?

ATTY GEN. PRYOR: I'm a conservative.

SEN. DURBIN: Do you consider yourself a moderate conservative, or one who is more conservative than most? Put yourself on the spectrum.

ATTY GEN. PRYOR: Well, Senator, that's a difficult thing to do. In Alabama, I think sometimes I'm called a moderate! (Laughs; laughter.)

SEN. DURBIN: That comes as no surprise. (Laughter.)

And let me ask you on the issue of states rights. Throughout your career, you have argued very strongly for the issue of states rights. I think of the employment discrimination case that you were involved in with -- (speaks aside to staff) -- the Garrett case -- sorry -- as well as the decision relative to the Violence Against Women Act. Where would you put yourself in terms of believing in the concept of states rights as opposed to federal authority?

ATTY GEN. PRYOR: I believe in the Constitution of the United States, Senator. I don't particularly like the term "states rights." I can't say I've totally avoided it in my political career, but much more often than not, I refer to federalism. I believe in a balance of federal and state power. I've expressed that perspective in a number of my writings and speeches.

In the cases that you mentioned, the federalism perspective that I offered in Garrett and in the Violence Against Women Act was the position that the Supreme Court of the United States sustained, and it's their responsibility to uphold the Constitution.

SEN. DURBIN: When I recently visited your state for the first time, with Congressman Lewis of Georgia, to look at Birmingham and Mobile and Selma, some of the civil rights shrines, I was told by Congressman John Lewis about Judge Frank Johnson, a federal judge from Alabama, a Republican appointed by President Eisenhower, who, according to John Lewis, has not received the credit he deserved, because he had the courage to stand up against states rights, and even against some members of his own federal judiciary, believing that there were more important issues at stake in terms of civil rights.

Tell me how you view Frank Johnson, civil rights, and the fact that, traditionally, states rights have been used to justify discrimination, particularly during the civil rights era when it comes to questions like disabled Americans and their rights. Do you view states rights as often being the shelter that people who want to practice discrimination rush to?

ATTY GEN. PRYOR: There's no doubt, in the history of the United States, from John C. Calhoun to George C. Wallace, the mantra of states rights has been used as an illegitimate defense of evil, frankly; of racial discrimination in more modern times, and slavery in earlier times.

I think Judge Johnson is a hero. The federal courthouse in Montgomery, a few blocks from where I work, is now named after him, thanks to the Congress of the United States.

I had the privilege of working -- of clerking for another hero of the deep South, a Republican who was appointed also by President Eisenhower to the 5th Circuit Court of Appeals.

I clerked for John Minor Wisdom. I'm proud that I clerked for him, especially because of his record on race, and especially because he recognized the difference between what the Constitution requires in a balance of federal and state power and the flawed and totally discredited and rightly discredited views of nullification and interposition that were advocated by southern populace back in the 1950s and '60s.

SEN. DURBIN: Well, General, let me just ask you, then. Let's -- let's fast forward from an easy chapter in history, which many of us either just read about or witnessed, to the more contemporary challenges. Can you understand the anxiety and fear that many people have when they hear you argue about the fact that this is a Christian nation and the many positions you have taken relative to the assertion of the 10 Commandments in a public setting and statements that are made? I'm Christian myself. But I can understand how people who are not would feel that this is a form of discrimination against them. And I would ask you, how do you reconcile, then, your admiration for Frank Johnson's courage to stand up against discrimination against people of color and the fact that you seem to have an ambivalence when it comes to the whole question of asserting the rights of those who don't happen to be Christian to practice their religion in this diverse nation?

ATTY GEN. PRYOR: I have never used the term "Christian nation". I have said that this nation was founded on a Christian perspective of the nature of man, that we derive our rights from God and not from government. And part of that perspective is that every individual enjoys human rights without regard to what the majority wants. Every individual enjoys human rights like religious freedom and freedom of conscience, including the freedom not to worship. That is what I have said. That's what I believe in. That goes to the core of what I believe in. It is, I believe, the perspective of the American form of government. And I've been faithful in my record as attorney general in defending the Constitution when it comes to issues like religious freedom.

In the area of school prayer, when the governor who appointed me was arguing that teachers should be able to lead prayer, I was the one taking the legal position in the state of Alabama that school- sponsored religious expression is incompatible with the First Amendment and that instead the federal courts had overstepped their bounds in one regard in censuring genuinely student-initiated religious expression, because those children derive their rights to pray genuinely on their own from God.

SEN. DURBIN: But let me just ask you, you seem to state that -- you just noted the historical connection between the Founding Fathers and Christian faith. But you went further than that. You have said the challenge of the next millennium will be to preserve the American experiment by restoring its Christian perspective. What I'm asking you is, do you not understand that that type of statement in a diverse society like America raises concerns of those who don't happen to be Christian that you are asserting an agenda of your own, a religious belief of your own inconsistent with separation of church and state, which we have honored since the beginning of this republic?

SEN. DURBIN: No, Senator, I think that would be a misunderstanding if someone came away with that impression. It goes to the core of my being that I have a moral obligation that has been formed by my religious faith to uphold my oath of office, to uphold the Constitution of the United States, which protects freedom of religion and freedom of religious expression. My record at attorney general has been just that.

When the Supreme Court of the United States struck down the Religious Freedom Restoration Act in the Boerne decision, I worked with a broad cross-section, Liberals and Conservatives, in Alabama to adopt our own religious freedom amendment to the constitution of Alabama modeled after RFRA.

When the city of Huntsville tried to use its zoning ordinances to curtail what I thought was a legitimate activity of a synagogue in Huntsville, I intervened as a friend of the court on their side because I thought their argument was supported by the Religious Freedom Amendment to the Constitution of Alabama, for which I had campaigned. I think it would just be a misunderstanding to come away with that impression. My perspective is one that -- a Christian perspective of the nature of man is that every person enjoys freedom of conscience and freedom of religion, which, of course, is protected by the First Amendment to the Constitution.

SEN. DURBIN: General, unfortunately we have a limited amount of time and I can't follow up, because you clearly have opened up a long series of questions related to the Establishment Clause. It is one thing to say that we have the freedom to practice; it is another thing to say that we condone, by government action, certain religious belief, or in fact propose or promulgate that belief. And I'm going to save those for written questions.

But let me go to a more specific area in the limited time that I have remaining. Are you a member of the National Rifle Association or its board of directors?

ATTY GEN. PRYOR: The National Rifle Association? I'm a member of the National Rifle Association. I am not a member of its board of directors.

SEN. DURBIN: Are you familiar with the case of United States versus Emerson?

ATTY GEN. PRYOR: Yes.

SEN. DURBIN: Which was filed in Texas. A case involving Timothy Joe Emerson, the subject of a domestic violence restraining order prohibiting him from threatening his wife or daughter or causing them bodily injury. And under federal law, he was prohibited from possessing a firearm because he was under this restraining order against domestic violence. And that although this was a Texas case being decided by the Fifth Circuit, you decided to file an amicus brief on behalf of the people of the sate of Alabama in support of Timothy Joe Emerson being allowed to carry a gun.

Can you explain why you went out of your way to say that a man that's under a restraining order for domestic violence, who had threatened the life of his wife or former wife's boyfriend, should be allowed to carry a gun?

ATTY GEN. PRYOR: I was arguing a position to get the Fifth Circuit, in that case, to look at the federal statute itself and avoid the question that the district court had ruled upon. The district court dismissed the indictment of that individual on the basis of the Second Amendment, claiming that the federal law in question was unconstitutional under the Second Amendment.

There were some confusing aspects to the federal statute in question that I thought the court ought to look at. The court ended up looking at that and rejected my argument. But I had urged the court to, if my argument had prevailed, to avoid the question of a Second Amendment defense.

SEN. DURBIN: Should he have been allowed to carry a firearm if there was a domestic violence order -- restraining order against him for threats to his wife and daughter and the boyfriend?

ATTY GEN. PRYOR: The law should be enforced against him if he has violated it. It was not clear to me from the text of the law that he had. If it had been and this Congress had made that clear, then absolutely it should have been enforced and he should be punished.

SEN. DURBIN: Is it customary for the attorney general --

SEN. HATCH: Senator, your time -- Senator, the time --

SEN. DURBIN: If I could ask one last question? Is it customary for the attorney general of the state of Alabama to file this kind of brief in a case involving Texas?

ATTY GEN. PRYOR: We file, as state attorneys general, amicus briefs in courts of appeals and the Supreme Court of the United States routinely.

The federal rules of appellate procedure give us a right to do so without permission.

SEN. DURBIN: Thank you very much.

Thanks, Mr. Chairman.