Last edited: February 12, 2005

One 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 examine.

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.


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 nomination.

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 years away.

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.


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.


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 clause.

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).


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 history.”

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, 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 preacher’s school.”


Accounts from four 11th Circuit judges contacted for this story say that Pryor is settling in well—each saying Pryor is hard-working and smart.

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 colleague.

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 unconstitutional.

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 Congress.

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 impartiality.

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.

[Home] [News] [USA]