Statement Of Senator Patrick
Leahy
On The Nomination Of William Pryor
Second Cloture Vote
November 6, 2003
As President Reagan used to say, there
you go, again. The Republican leadership, following the script laid
out for it by a White House intent on bending all other branches of
government to its will, toward its vision of some sort of unitary
government, has brought us here to vote on a second cloture petition
on the nomination of William Pryor to the U.S. Court of Appeals for
the Eleventh Circuit. I assume they recall that they failed in this
effort a few months ago at the end of July because of the
controversy this nomination has engendered.
Hollow Priorities
Only the Republican leadership can
answer why it refuses to proceed on what all of us know are the real
priorities of the American people in these final days of this
legislative session. We have several annual appropriations bills on
which the Senate has yet to act. They include appropriations for our
veterans, for law enforcement, for the State Department, for the
federal judiciary, for housing and for much more. There is the
unfinished business of providing a real prescription drug benefit
for seniors. There is the Nation’s unemployment and lack of job
opportunities that confound so many American families. There are
the corporate and Wall Street scandals that concern so many of those
who have invested and placed their trust and financial security at
risk in our securities markets. There is the need to perform real
oversight of the USA PATRIOT Act and to provide real oversight for
the war in
Iraq.
Rather than consider those important
matters, why would the Republican leadership insist on rehashing the
debate on one of the handful of judicial nominees on which further
Senate action is unlikely. Certainly when they were
considering the judicial nominees of a Democratic President in the
years 1995 through 2000, they showed no concern about stranding more
than 60 of President Clinton’s judicial nominations without hearings
or votes. They did not demand an up or down vote on every nominee
but were content to use anonymous holds to scuttle scores of
qualified nominees. Indeed, they stood cavalierly by while
vacancies rose from 65 in January 1995 to 110 when Democrats assumed Senate
leadership in the summer of 2001. They presided over the doubling
of circuit court vacancies from 16 to 33 during that time.
So why do they insist that the Senate
now consume this precious floor time to rehash the debate on one of
the President’s most controversial nominees to the independent
federal judiciary, the nomination of William Pryor? Perhaps it is
to give the Republican leadership another chance to make false
arguments about judicial nominations. Perhaps it is to give some a
platform for baseless and McCarthyite accusations that Senators
oppose Mr. Pryor because of his religion. Or perhaps it is to
distract from the real concerns that affect Americans every day.
168 Nominees Confirmed
If the Republican leadership has
staged this vote in order to try to persuade the American people
that Democrats are obstructing the President’s judicial nominees,
they are going to have to stray far from the facts, because the
facts show that Senate has made progress on judicial vacancies when
and where the Administration has been willing to work with the
Senate. Indeed, yesterday the Senate confirmed the
168th of this President’s judicial nominees – 100 of
them, confirmed by the previous Democratic-controlled Senate, in
just 17 months. We could confirm several more if the Republican
leadership would just schedule the votes. There is another nominee
from New
York who was supported unanimously by the Judiciary Committee and is
just waiting to be confirmed. As I noted earlier this week, there
are also nominees from New York and Arkansas who will require debate
but who will also be voted upon after fair debate. The number of
confirmations could easily total 170 or more if the Republican
leadership were interested in advancing the judicial nominations of
this President. But, of course, more progress might undercut the
partisan message that some are trying to peddle. Maybe that is why
for two weeks the Republican leadership has failed to schedule votes
on judicial nominees who will be approved, and have chosen, instead,
to focus on the handful of the President’s most extreme and divisive
nominees.
The truth is that in less than three
years’ time, the number of President Bush’s judicial nominees the
Senate has confirmed has exceeded the number of judicial nominees
confirmed for President Reagan, the “all time champ” at getting
federal judges confirmed, in all four years of his first term in
office. A handful of the most extreme and controversial nominations
have been denied consent by this Senate in the proper exercise of
its duties under the rules. Only four. One-hundred-sixty-eight,
seven, to four. That is in stark contrast to the more than 60
judicial nominees from President Clinton who were blocked by a
Republican-led Senate.
McCarthyite Smears
If debates like this are staged to
give some a platform for repulsive smears that Democrats are
opposing Mr. Pryor because of his religion, they will have to enter
a realm of demagoguery, repeating false allegations and innuendo
often enough to hope that some of their mud will stick.
Senate Democrats oppose the nomination
of William Pryor to the Eleventh Circuit because of his extreme –
some, with good reason, use the word “radical” -- ideas about what
the Constitution says about federalism, criminal justice and the
death penalty, violence against women, the Americans with
Disabilities Act, and the government’s ability to protect the
environment on behalf of the American people. Of course, those
substantive concerns will not do much to help raise money for the
Republican Party or seem provocative in a flyer placed on
windshields late on the day before an election and hardly get a
mention on the evening news. So some Republican partisans will be
putting the truth to one side. They dismiss the views of Democratic
Senators doing their duty under the Constitution to examine the
fitness of every nominee to a lifetime position on the federal bench
and choose, instead, to use smears and the ugliest accusations they
could dream up.
This started in the aftermath of the
first rejection of the
Pickering nomination in the Judiciary
Committee. After the Committee voted not to recommend him to the
full Senate, insinuations were made on this Senate floor that
Democrats opposed him because he is a Baptist. From that time to
now, I have waited patiently for Republican Senators to disavow such
charges which they know to be untrue.
Just a few weeks ago, Republican
Senators on the Judiciary Committee trotted out an offensive cartoon
targeting a nominee, and asked us to denounce it. Even though it
was taken off a website run by two private individuals, of whom I
had never heard before and who have no connection to Democratic
Senators, we appropriately denounced it without hesitation.
Abusing Religion For Wedge Politics
But when slanderous accusations were
made by Republican Senators, and ads run by a group headed by the
President’s father’s former White House counsel and a group whose
funding includes money raised by Republican Senators and even by the
President’s family, no apologies or denunciations were heard. Other
Republican members of the Judiciary Committee and of the Senate have
either stood mute in the face of these McCarthyite charges, or,
worse, have fed the flames.
These accusations are harmful to the
Senate and to the Nation and have no place in this debate or
anywhere else. Just a few weeks ago, President Bush rightly told
the Prime Minister of Malaysia that his inflammatory remarks about
religion were “wrong and divisive.” He should say the same to
members of his own party. Today, Republican Senators have another
chance to do what they have not yet done and what this
Administration has not yet done: Disavow this campaign of division
waged by those who would misuse religion by playing wedge politics
with it. I hope that the Republican leadership of the Senate will
finally disavow the contention that any Senator is being motivated
in any way by religious bigotry.
An Extreme And Divisive Nomination
Instead, the Senate’s debate should
center the nominee’s qualifications for this lifetime post in the
federal judiciary. There is an abundance of substantive and
compelling reasons why William Pryor should not be a judge on the
Eleventh Circuit. Opposition to Mr. Pryor’s nomination is shared by
a wide spectrum of objective observers. Mr. Pryor’s record is so
out of the mainstream that, even before last month’s hearing, a
number of editorial boards and others weighed in with significant
opposition.
Last April, even the Washington
Post, which has been exceedingly generous to the
Administration’s efforts to pack the courts, termed Mr. Pryor
“unfit.” Both the Tuscaloosa News and the Hunstville
Times wrote in early May against the nomination. Other
editorial boards across the country spoke out, including the San
Jose Mercury News and the Pittsburgh Post-Gazette. Since
the hearing, that chorus of opposition has only grown and now
includes the New York Times, the Charleston Gazette,
the Arizona Daily Star and the Los Angeles Times. I
will submit a sampling of these editorials and columns for the
Record.
We have also heard from a number of
organizations and individuals concerned about justice before the
federal courts. The Log Cabin Republicans, the Leadership
Conference on Civil Rights, the
Alliance for Justice, NARAL and many
others have provided the Committee with their concerns and the basis
for their opposition. We have received letters of opposition from
organizations that rarely take positions on nominations but feel so
strongly about this one that they are compelled to write, including
the National Senior Citizens’ Law Center, the Anti-Defamation League
and the Sierra Club. I submit copies of letters of opposition for
the record.
The
ABA’s evaluation also indicates
concern about this nomination. Their Standing Committee on the
Federal Judiciary gave Mr. Pryor a partial rating of “not qualified”
to sit on the federal bench. Of course this is not the first “not
qualified” rating or partial “not qualified” rating that this
Administration’s judicial nominees have received. As of today, more
than two dozen of President Bush’s nominees have received
indications of concerns about their qualifications from the ABA’s
peer reviews.
All of this opposition came before
these newspapers, public interest organizations, and the bar
association were aware of sworn statements made by former Alabama
Governor Fob James and his son, both Republicans, explaining that
Mr. Pryor was only hired by James to be the state’s Attorney General
after promising that he would defy court orders, up through and
including orders of the Supreme Court of the United States. In
sworn affidavits Governor James and his son recount how Pryor
persuaded them he was right for the job by showing them research
papers he had supervised in law school about “nonacquiesence” to
court orders. Indeed, under penalty of perjury, the former
Republican Governor and his son say that Mr. Pryor’s position on
defying court orders changed only when he decided he wanted to be a
federal judge.
If true, this information, consistent
with the activism and extremism present elsewhere in Mr. Pryor’s
record, is still shocking. To think that this man would come before
the Senate after having made a promise like that – to undermine the
very basis of our legal system – and ask to be confirmed to a
lifetime position on the federal bench, is beyond belief.
While this is only the latest show of
disrespect for the Constitution shown by Mr. Pryor, it is not the
only one.
Activist And Crusader
Like Jeffery Sutton, Mr. Pryor has
been a crusader for the federalist revolution, but Mr. Pryor has
taken an even more prominent role. Having hired Mr. Sutton to argue
several key federalism cases in the Supreme Court, Mr. Pryor is the
principal leader of the federalist movement, promoting state power
over the federal government. A leading proponent of what he refers
to as the “federalism revolution,” Mr. Pryor seeks to revitalize
state power at the expense of federal protections, seeking
opportunities to attack federal laws and programs designed to
guarantee civil rights protections. He has urged that federal laws
on behalf of the disabled, the aged, women, minorities, and the
environment all be limited.
Limiting Worker And Environmental Protections
He has argued that the federal courts
should cut back on the protections of important and well-supported
federal laws including the Age Discrimination in Employment Act, the
Americans with Disabilities Act, the Civil Rights Act of 1964, the
Clean Water Act, the Violence Against Women Act, and the Family and
Medical Leave Act. He has repudiated decades of legal precedents
that permitted individuals to sue states to prevent violations of
federal civil rights regulations. Mr. Pryor’s aggressive
involvement in this “federalist revolution” shows that he is a
goal-oriented, activist conservative who has used his official
position to advance his “cause.”
Alabama was the only state to file an
amicus brief arguing that Congress lacked authority to enforce the
Clean Water Act. He argued that the Constitution’s Commerce Clause
does not grant the federal government authority to prevent
destruction of waters and wetlands that serve as a critical habitat
for migratory birds. The Supreme Court did not adopt his narrow
view of the Commerce Clause powers of Congress. While his advocacy
in this case is a sign to most people of the extremism, Mr. Pryor
trumpets his involvement in this case. He is unabashedly proud of
his repeated work to limit Congressional authority to promote the
health, safety and welfare of all Americans.
Mr. Pryor’s passion is not some
obscure legal theory but a legal crusade that has driven his actions
since he was a student and something that guides his actions as a
lawyer. Mr. Pryor’s speeches and testimony before Congress
demonstrate just how rooted his views are, how much he seeks to
effect a fundamental change in the country, and how far outside the
mainstream his views are.
Mr. Pryor is candid about the fact
that his view of federalism is different from the current operation
of the federal government – and that he is on a mission to change
the government to fit his vision. His goal is to continue to limit
Congress’s authority to enact laws under the Fourteenth Amendment
and the Commerce Clause – laws that protect women, ethnic and racial
minorities, senior citizens, the disabled, and the environment – in
the name of sovereign immunity. Is there any question
that he would pursue his agenda as a judge on the Eleventh Circuit
Court of Appeals – reversing equal rights progress and affecting the
lives of millions of Americans for decades to come?
Mr. Pryor=s
comments have revealed insensitivity to the barriers that
disadvantaged persons and members of minority groups and women
continue to face in the criminal justice system.
Attacking The Voting Rights Act
In testimony before Congress, Mr.
Pryor has urged repeal of Section 5 of the Voting Rights Act – the
centerpiece of that landmark statute – because, he says, it “is an
affront to federalism and an expensive burden that has far outlived
its usefulness.” That testimony demonstrates that Mr. Pryor is more
concerned with preventing an “affront” to the states’ dignity than
with guaranteeing all citizens the right to cast an equal vote. It
also reflects a long-discredited view of the Voting Rights Act.
Since the enactment of the statute in 1965, every Supreme Court case
to address the question has rejected the claim that Section 5 is an
“affront” to our system of federalism. Whether under Earl Warren,
Warren Burger, or William Rehnquist, the United States Supreme Court
has recognized that guaranteeing all citizens the right to cast an
equal vote is essential to our democracy—not a “burden” that has
“outlived its usefulness.”
His strong views against providing
counsel and fair procedures for death row inmates have led Mr. Pryor
to doomsday predictions about the relatively modest reforms in the
Innocence Protection Act to create a system to ensure competent
counsel in death penalty cases. When the United States Supreme
Court questioned the constitutionality of Alabama=s
method of execution in 2000, Mr. Pryor lashed out at the Supreme
Court, saying
A[T]his
issue should not be decided by nine octogenarian lawyers who happen
to sit on the U.S. Supreme Court.” Aside from the obvious
disrespect this comment shows for the Nation’s highest court, it
shows again how results-oriented Mr. Pryor is in his approach to the
law and to the Constitution. Of course an issue about cruel and
unusual punishment ought to be decided by the Supreme Court. It is
addressed in the Eighth Amendment, and whether or not we agree on
the ruling, it is an elementary principle of constitutional law that
it be decided by the Supreme Court, no matter how old its members.
Mr. Pryor has also vigorously opposed
an exemption for persons with mental retardation from receiving the
death penalty, exhibiting more certainty than understanding or sober
reflection. He authored an amicus curiae brief to the Supreme Court
arguing that the Court should not declare that executing mentally
retarded persons violated the Eighth Amendment. After losing on
that issue, Mr. Pryor made an unsuccessful argument to the Eleventh
Circuit that an
Alabama death-row defendant is not
mentally retarded.
Mr. Pryor has spoken harshly about the
moratorium imposed by former Illinois Governor George Ryan, calling
it a “spectacle.” Can someone so dismissive of evidence that
challenges his views be expected to hear these cases fairly? Over
the last few years, many prominent Americans have begun raising
concerns about the death penalty, including current and former
supporters of capital punishment. For example, Justice O'Connor
recently said there were “serious questions” about whether the death
penalty is fairly administered in the United States, and added:
“[T]he system may well be allowing some innocent defendants to be
executed.” In response to this uncertainty, Mr. Pryor offers us
nothing but his obstinate view that there is no problem with the
application of the death penalty. This is a position that is not
likely to afford a fair hearing to a defendant on death row.
Mr. Pryor’s troubling views on the criminal justice system are not
limited to capital punishment. He has advocated that counsel need
not be provided to indigent defendants charged with an offense that
carries a sentence of imprisonment if the offense is classified as a
misdemeanor. The Supreme Court nonetheless ruled that it was a
violation of the Sixth Amendment to impose a sentence that included
a possibility of imprisonment if indigent persons were not afforded
counsel.
Like Carolyn Kuhl, Priscilla Owen and
Charles Pickering, Mr. Pryor is hostile to a woman’s right to
choose. There is every indication from his record and statements
that he is committed to reversing Roe v. Wade. Mr. Pryor
describes the Supreme Court’s decision in Roe v. Wade as the
creation “out of thin air [of] a constitutional right,” and opposes
abortion even in cases of rape or incest.
Mr. Pryor does not believe Roe
is sound law, neither does he give credence to Planned Parenthood
v. Casey. He has said that “Roe is not constitutional law,” and
that in Casey, “the court preserved the worst abomination of
constitutional law in our history.” When Mr. Pryor appeared before
the Committee, he repeated the mantra suggested by White House
coaches that he would “follow the law.” But his willingness to
circumvent established Supreme Court precedent that protects
fundamental privacy rights seems much more likely.
Mr. Pryor has expressed his opposition
to fair treatment of all people regardless of their sexual
orientation. The positions he took in a brief he filed in the
recent Supreme Court case of Lawrence v. Texas were entirely
repudiated by the Supreme Court majority just a few months ago when
it declared that: “The petitioners are entitled to respect for
their private lives. The State cannot demean their existence or
control their destiny by making their private conduct a crime.” Mr.
Pryor’s view is the opposite. He would deny certain Americans the
equal protection of the laws, and would subject the most private of
their behaviors to public regulation.
A Record Of Activism
On all of these issues -- the
environment, voting rights, women’s rights, gay rights, federalism,
and more -- William Pryor’s record of activism and advocacy is
clear. That is his right as an American citizen, but it does not
make him qualified to be a judge. As a judge it would be his duty
to impartially hear and weigh the evidence and to impart just and
fair decisions to all who come before the court. In their hands, we
entrust to the judges in our independent federal judiciary the
rights that all of us are entitled to enjoy through our birthright
as Americans.
The President has said he is against
what he calls “judicial activism.” How ironic, then, that he has
chosen several of the most committed and opinionated judicial
activists ever to be nominated to our courts.
The question posed by this
controversial nomination is not whether Mr. Pryor is a skilled and
capable politician and advocate. He certainly is. The question is
whether -- not for a two year term, or a six year term, but for a
lifetime -- he would be a fair and impartial judge. Could every
person whose rights or whose life, liberty or livelihood were at
issue before his court, have faith in being fairly heard? Could
every person rightly have faith in receiving a just verdict, a
verdict not swayed by or yoked to the legal philosophy of a
self-described legal crusader? To read Mr. Pryor’s record and his
extreme views about the law is to answer that question.
The President has chosen to divide the
American people, the people of the 11th Circuit, and the
Senate with this highly controversial nomination. He should clean
the slate and choose a nominee who can unite the American people.
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