President Donald Trump is very close to announcing his choice to replace conservative Justice Antonin Scalia on the U.S. Supreme Court.
“I think in my mind I know who it is,” he recently said.
If we’re to believe knowledgeable court watchers or aspiring Trump whisperers, we know who it is, too: Mobile native Judge Bill Pryor.
Pryor comes highly recommended from all corners of the conservative movement, from the editors at the National Review to firebrand radio host and legal expert Mark Levin. Another Mobilian and frequent conservative writer on these pages, Quin Hillyer, says Pryor would be an “excellent” choice. I’ve read and watched Pryor for years, as well, and have become reasonably confident that he’d be a safe bet to fill Scalia’s robes.
But trusting our side’s experts and being reasonably assured simply isn’t enough. There’s too much at stake, and we’ve been burned far too many times. Conservatives must be absolutely certain, and that’s why we must scrutinize Pryor’s record as if we’ve just met the man.
Pryor, of course, was Alabama’s attorney general from 1997-2004 and enjoyed a reputation as a capable politician and a pretty good AG. He was placed on the U.S. 11th Circuit of Appeals by President George W. Bush, and during the decade since he’s become known as a very conservative judge, much like the late justice he may replace.
Conservative legal scholars tell us that Pryor strongly believes in judicial restraint, and holds that political questions must be left to the legislature, however unsettled, unwise, or unfortunate they may be, and that the Supreme Court must always limit its involvement with an issue to its constitutionality, and even then only after every other possible solution has failed.
Moreover, we’re told that when Pryor does believe the Supreme Court should take a look, it should apply what’s known as an “originalist” view (restricting one’s perspective by what the framers meant when they drafted the constitution, not what it could, would, or should mean in today’s world).
Pryor once said that Roe v. Wade was “the worst abomination in the history of constitutional law” and is reported to have ended a public prayer with “Please, God, no more Souters,” a reference to the infamously awful nomination of Justice David Souter by President George H.W. Bush.
Having someone on the court who believes such things would be a breath of fresh air, but there are those who have serious doubts. Normally, outlier criticisms wouldn’t garner much attention – if everyone agrees but one man in the corner throwing rocks, then odds are he’s either grinding an ax or he’s nuts. But then again, there’s also the slim chance he sees something others don’t.
An organization called the Judicial Action Group is currently one of those rock throwers. I’m not familiar with their leadership, but they issued a paper last week claiming that past rulings creat “an overwhelming likelihood that he would not be a constitutionalist on the Supreme Court.”
The group referenced two cases in which Pryor concurred with what they see as liberal, unconstitutional opinions.
First, in Glenn v. Brumby, they wrote that Pryor “usurped legislative power by purporting to judicially create – without precedent and without constitutional and statutory support – a new ‘transgender’ employment and bathroom right.” Secondly, in Keeton v. Wiley, they contend he “affirmed the expulsion of a female Christian student from a state college for refusing to engage in a ‘remediation plan’ of her views on sexuality which included the suggestion that she attend a ‘Gay Pride Parade.’”
Both issues sound like implausible situations, but such is the world we live in; the courts are making all sorts of nutty rulings, which is why conservatives must clearly understand why Pryor concurred.
Then there’s the time Pryor, as our state’s AG, helped remove Alabama Supreme Court Chief Justice Roy Moore from office over ethics charges. While that decision was mostly about the role of our judges and the justice system rather than public prayer, conservatives are owed a solid explanation.
Hillyer, who knows Pryor and examined many of the cases at issue, has written that the “criticisms don’t stand up to scrutiny.” I trust Hillyer, so that’s good news, but scrutinize Pryor, we must.