Year Later: Pryor’s Record on 11th Circuit
February 11, 2005
By Jonathan Ringel
Fulton County Daily Report
A year ago this month, William H. Pryor Jr. was excused
from the contentious Senate confirmation process and given a presidential pass
that took him directly to a seat on the 11th U.S. Circuit Court of Appeals.
With all but two Democrats voting against him and
determined to filibuster, it seemed unlikely Pryor would ever get a vote on
his nomination. But during a 10-day congressional break, President Bush on
Feb. 20 used his power to make recess appointments to bypass the Senate and
place Pryor on the court. The appointment expires at the end of this year, but
the president has said he will renominate Pryor for a permanent appointment.
That means Pryor—whose critics cite his outspokenly
conservative, occasionally combative, views on abortion, church-state
separation, states’ rights and a host of crime and punishment issues—will
have a return engagement before the Senate.
This time, senators will have a judicial track record to
A Fulton County Daily Report analysis of Pryor’s 48
published decisions on the court suggest he fits comfortably within the broad
majority of the 11th Circuit, considered one of the country’s most
conservative courts. In no case has he publicly been on the dissenting
side—in some actions by the court, individual votes are not disclosed—and
all of his three-judge panels have resulted in unanimous decisions.
En banc cases, in which all 12 judges on the court
usually take part, give a little more context. Pryor—like most of his
colleagues—is most often on the opposite side of the court’s lone liberal,
Judge Rosemary Barkett. A 1994 appointee of President Clinton, Barkett
dissented in five of 10 en banc actions in which Pryor has participated.
Pryor would not comment for this article, but judges and
friends say he is enjoying the position. Unlike his time as attorney general,
when Pryor was likely to speak out loudly on a wide variety of issues, he has
been relatively quiet on the 11th Circuit bench.
SIDING WITH THE LITTLE GUY
In several cases, Pryor has taken positions seemingly at
odds with Republican stances and his record as Alabama AG, proving that he’s
a judge who “seeks to do that which is right in the law,” said Sen. Jeff
Sessions, the Republican from Alabama who was the chief sponsor for Pryor’s
Sessions, for whom Pryor worked when the senator was
Alabama attorney general, cited Pryor’s ruling, as part of a three-judge
panel, in favor of an illegal alien who challenged his deportation. The
plaintiff, a Mexican, had come to the United States illegally, been deported
and returned illegally a month later. He married a U.S. citizen and became a
permanent U.S. resident, after which Congress passed a law declaring aliens
who had been deported ineligible for resident status until they had spent five
Joined by Judges Edward E. Carnes and Frank M. Hull,
Pryor held that “Congress did not clearly express” that the law should
apply retroactively, and they stopped the alien’s deportation to Mexico.
“I’m not sure I agree with it,” said Sessions of
the decision in Cisneros v. U.S. Attorney General, 381 F.3d 1277, but he added
that it certainly “comes down on the side of the little guy.”
Another case fitting that description is Brown v.
Johnson, 387 F.3d 1344, in which Pryor wrote for Judges Gerald B. Tjoflat and
Joel F. Dubina in favor of an HIV-positive inmate who claimed prison officials
stopped giving him his medication.
As AG, critics say, Pryor wasn’t known for standing up
for the “little guy.” Disabled rights groups had targeted Pryor because of
his 2001 victory at the U.S. Supreme Court over an Alabama state employee who
claimed she was demoted for having breast cancer. In an endorsement of
Pryor’s view of states’ rights, or federalism, the 5-4 court struck down a
part of the Americans with Disabilities Act that allowed state workers to sue
their employers for money damages.
The next year, civil rights groups had howled at
Pryor’s argument—this one rejected by the high court—that Alabama guards
accused of leaving an inmate handcuffed to a hitching post were entitled to
immunity from suit because courts had not specifically identified the
guards’ alleged conduct as unconstitutional.
In the case before the 11th Circuit, the inmate, John
Ruddin Brown, was a convicted robber who already had filed three suits against
prison officials that had been deemed meritless. A lower court judge had
dismissed Brown’s latest case because the federal Prison Litigation Reform
Act bars prisoners who have filed three meritless suits from bringing new
cases unless they are in “imminent danger of serious physical injury.”
But last October, Pryor wrote for the panel that Georgia
officials “wisely do not deny that Brown has serious medical needs.” He
declared that the prison’s alleged withholding of Brown’s HIV treatment
was sufficient to trigger the exception.
‘VERY TROUBLING’ DECISION
While Sessions and others are likely to tout Brown as an
example of Pryor’s open mind, critics will dismiss it as an easy case.
Elliot M. Mincberg of People for the American Way, which
has opposed Pryor from the beginning, said the Brown decision simply is “a
clear example of following straightforward law.”
Mincberg has been watching Pryor, and he deems other
decisions more important and more indicative of the kind of jurisprudence that
Pryor will hand down if given a lifetime appointment to the court.
He cited “very troubling” a case in which the 11th
Circuit voted against gay-adoption rights.
In the case, Lofton v. Secretary of the Department of
Children and Family Services, 377 F. 3d 1275, Pryor joined five other judges
to prevent the whole court from reconsidering a panel ruling that had upheld
Florida’s ban on gay adoption.
Pryor voted with Chief Judge J.L. Edmondson and Judges
Carnes, Hull, Stanley F. Birch Jr. and Susan H. Black to stop the
reconsideration, which needed a majority to occur.
A key point was the 11th
Circuit’s interpretation of a 2003 Supreme Court case, Lawrence
v. Texas, 123 S. Ct. 2472, in which the justices struck down a Texas
law that criminalized homosexual sodomy. As Alabama attorney general, Pryor at
the time filed an amicus brief arguing that a ruling allowing homosexual
sodomy in Texas “must logically extend to activities like prostitution,
adultery, necrophilia, bestiality, possession of child pornography, and even
incest and pedophilia.”
Birch, who had written the panel
decision at issue, reiterated his belief that Lawrence did not make sexual
privacy a “fundamental right.” As a result, even though he found
Florida’s ban on gay adoption “misguided,” he explained the state had
the right to pass such a law.
Barkett wrote a blistering dissent,
arguing that the court was improperly ignoring the Lawrence decision in favor
of Florida’s “pretexts for impermissible animus and prejudice against
homosexuals.” Dubina and Judge R. Lanier Anderson III wrote that the Florida
law violated equal protection guarantees. Tjoflat and Judges Stanley Marcus
and Charles R. Wilson said there were “serious questions” about the
law’s constitutionality that should have been reviewed by the whole court.
Critics noted that had Pryor not
been on the court, the 11th Circuit likely would have taken up the case and
possibly overturned the Florida law.
MIXED FEDERALIST MESSAGES
One decision with a mixed message involved a church
arsonist. The case tested Pryor’s views of federalism, leaving him siding
against the arsonist but seemingly in favor of a broader congressional power
to regulate interstate commerce than he previously had backed.
As attorney general, Pryor had been an ardent supporter
of the Supreme Court ‘s renewed interest in federalism. As the top legal
officer for a state government, his interest was understandable: Federalism
was the basis for a series of decisions that drew limits on congressional
power over the individual states.
Critics claimed Pryor went beyond mere defense of his
client when in 2000 he filed an amicus brief in the U.S. Supreme Court arguing
that a portion of the federal Violence Against Women Act violated states’
rights. Attorneys general from 36 other states backed the federal
government’s position that the section allowing women to sue their abusers
in federal court was constitutional.
But Pryor—and eventually a 5-4 high court
majority—held that violence against women did not have a substantial enough
effect on interstate commerce to justify federal involvement in matters
normally left to the states. U.S. v. Morrison, 529 U.S. 598 (2000).
Now at the 11th Circuit, Pryor was part of a 10-3 en banc
majority that upheld a federal law protecting religious property. The majority
in the Jan. 10 ruling, written by Marcus, said that because the defendant used
“channels and instrumentalities of commerce”—specifically driving a car
along interstate highways to get to the churches—he was charged properly
under a federal law protecting churches from vandalism.
Marcus cited as support the case underlying the Morrison
decision—U.S. v. Lopez, 514 U.S. 549, a 1995 ruling striking down a federal
gun ban in school zones. It stated that Congress could prohibit activity
dealing with the instrumentalities or channels of interstate commerce or
activity that had a substantial effect on interstate commerce.
The dissents of Tjoflat and Birch and Senior Judge James
C. Hill chastised the majority for overreaching in the use of the commerce
Under the majority’s theory, Hill wrote, “I cannot
think of any local activity that Congress could not regulate, nor any crime
that Congress could not federalize under such an expansive interpretation of
the commerce power.” U.S. v. Ballinger, Nos. 01-14872 and 01-15080 (11th
Cir. Jan. 10, 2005).
QUOTING THE POPE
Abortion, the litmus-test issue for every federal
judicial nominee, has not come before Pryor on the 11th Circuit; despite its
prominence in the debate over courts, abortion comes before the 11th Circuit
very rarely. In Senate hearings, Pryor was reminded that as Alabama AG he had
called Roe v. Wade “the worst abomination of constitutional law in our
In a commencement address at evangelist Pat Robertson’s
Regent University last May, he used an oblique reference to reaffirm his
opposition to abortion.
According to a video recording of the speech available on
c-span.org, Pryor told a story of George Washington Carver, the famous
African-American agricultural scientist. “He was disdained by some elites of
his day for his religious conviction,” Pryor said, noting that a New York
Times editorial in 1924 scolded Carver for “a complete lack of scientific
spirit” for having said his work was inspired by God.
“In that spirit,” Pryor told the graduates, “you
are called to embrace what Pope John Paul II calls ‘the culture of
life.’” Pryor added that life was the first unalienable right mentioned in
the Declaration of Independence.
The pope used the phrase “culture of life” in a 1991
letter to bishops affirming the Catholic Church’s stance against abortion
and euthanasia. Bush also has adopted the phrase, last month praising abortion
protesters for fostering “a culture of life.”
David Seldin of the abortion rights group NARAL
Pro-Choice America said Pryor’s comments were of “questionable
appropriateness.” Joe Conn of Americans United for Separation of Church and
State said, “It’s hard to take seriously Pryor’s effort to depict
himself as mainstream when he shows up to speak at a right-wing TV
‘HE’S LOVING THE JOB’
Accounts from four 11th Circuit judges contacted for this
story say that Pryor is settling in well—each saying Pryor is hard-working
Pryor, 42, apparently is serving his time in legislative
limbo in stride.
“He’s loving the job,” said a lawyer friend in
Birmingham, Ala., where Pryor moved with his wife and two daughters from
Montgomery, Alabama’s capital.
Tjoflat, who has served with Pryor on 14 published cases,
said Pryor does not appear to be bothered by his unique status—as the only
federal appeals judge in America without life tenure.
“I think his attitude is just do it one day at a time
and let nature take its course,” said Tjoflat, whose 1975 confirmation took
just 17 days.
Birch, whose 1990 confirmation took 50 days, said he has
joked with Pryor that losing the confirmation fight could be the best thing
that ever happened to him. With experience as a state attorney general and a
federal judge, Pryor “could write [his] own ticket,” Birch told his new
Pryor’s first year has not been without awkward
moments, most notably when the full court had to address arguments from Sen.
Edward M. Kennedy, D-Mass., and others that Pryor’s recess appointment was
The challengers claimed that Bush’s use of his powers
to appoint judges during congressional recesses—without the usual consent of
the Senate—was unconstitutional because the recess in which Pryor was
nominated was a brief holiday break, not a recess between sessions of
Noting that more than 300 recess appointments to the
courts have occurred since George Washington was president, Chief Judge
Edmondson wrote, “We are not persuaded that the President acted beyond his
authority in this case.” He was joined by Tjoflat, Anderson, Birch, Dubina,
Black, Hull and Marcus.
Barkett dissented, arguing that “the majority’s
conclusions conflict with the words of the Constitution, the purpose of the
Recess Appointments Clause, and the structural principles underlying the
Constitution’s delicate balance of power between the executive and
legislative branches of government ... .”
Challengers from the Sierra Club, in another case,
claimed Pryor’s temporary appointment—and pending consideration from the
Senate—subjected him to political concerns and therefore threatened his
As a result, Nan Aron of Alliance for Justice, another
critic, suggested Pryor “may have pulled his punches.”
Tjoflat calls that claim “just baloney.”
Noting his outspoken nature as AG, Tjoflat said nothing
in Pryor’s background suggests he would do such a thing.
On a scale of one to 10—with one being “a saint”
and 10 being “a judge who votes strictly to advance a political agenda,”
Tjoflat said he’d rate Pryor at a two.
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