Alliance for Justice Report in Opposition to the Nomination of William H. Pryor to the United States Court of Appeals for the Eleventh Circuit
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PRYOR’S RECORDStates’ RightsSince he became Alabama’s Attorney General in 1997, Pryor has taken steps to ensure that Alabama has been at the center of the “states’ rights” movement, participating as a party or an amicus curiae in virtually every significant “states’ rights” case before the Supreme Court. In these cases, Pryor was not simply “doing his job” as Alabama’s elected Attorney General. Rather, taking full advantage of the Alabama Attorney General’s absolute authority to decide cases to pursue,7 he was using the resources of Alabama to promote, as he said, “a subject that is near and dear to my heart: federalism.”8 Pryor hired fellow states’ rights advocate Jeffrey Sutton9 to represent the state of Alabama in a number of the most significant federalism cases in recent years.10 In case after case, Pryor – often without the assistance of other state attorneys general – pushed the Supreme Court to adopt new limits on federal authority. Under Pryor’s leadership, Alabama was the only state to challenge the constitutionality of provisions of the Violence Against Women Act (United States v. Morrison).11 Pryor also argued in briefs that the Supreme Court should cut back on the protections of the Age Discrimination in Employment Act, the Civil Rights Act of 1964, the Americans with Disabilities Act, the Family and Medical Leave Act, and the Clean Water Act (Kimel v. Florida Board of Regents; Alexander v. Sandoval; Garrett v. Board of Trustees; Department of Human Resources v. Hibbs;12 SWANCC v. U.S. Army Corps of Engineers). The conservative Weekly Standard named Pryor one of five true “champions” of states’ rights.13 Richard Cohen, an attorney with the Alabama-based Southern Poverty Law Center, said of Pryor: “Bill has been an architect of the federalist revolution in this country. That is surely what has brought him to the attention of prominent figures in the [Bush] administration. But it’s not a surprise that it is also what brought him to the attention of the people who believe it is the extension of federal power that has assured equal rights in this country.”14 Pryor has not been satisfied with the “states’ rights” revolution brought about by the recent decisions of the Supreme Court’s conservative five-justice majority. In case after case he has pressed the Court to take even more extreme steps to limit congressional power. In SWANCC v. U.S. Army Corps of Engineers, Pryor argued that provisions of the Clean Water Act exceeded congressional authority under the Commerce Clause and that federal statutes regulating state entities should have no presumption of constitutionality. In Hibbs v. Nevada Department of Human Resources, Pryor asserted that states could not be sued for damages when they refused to allow state employees to take unpaid leave to care for a sick relative pursuant to the Family and Medical Leave Act (FMLA). And, in Jinks v. Richland County, he argued that Congress even lacked authority to toll state statutes of limitations during the pendency of federal court actions. The Supreme Court refused to accept any of these propositions. Indeed, the 6-3 decision in Hibbs upholding a state employee’s FMLA claim against Nevada as a valid exercise of congressional power to prohibit gender discrimination under the Fourteenth Amendment was written by conservative Chief Justice Rehnquist, who found a long history of “state laws limiting women’s employment opportunities,”15 and the decision rejecting Pryor’s “state sovereignty” argument in Jinks was unanimous, and authored by Justice Antonin Scalia, the Supreme Court’s most pro-states’ rights member.16 Pryor continues to look for new avenues to pursue his “states’ rights” agenda. In recent speeches and articles he has questioned the constitutionality of suits for money damages against state governments under the Equal Pay Act, argued for limits on congressional authority pursuant to the Spending Clause, called upon the courts to restrict congressional power to prohibit state actions that have a discriminatory impact but no discriminatory animus, and asserted that the courts should place new restrictions on actions for injunctive relief against state officers to enforce federal law.17 If confirmed, he can be expected to carry this fervent advocacy for “states’ rights” with him to the bench. Civil Rights Women’s RightsThroughout his career, Pryor has been publicly critical of the Supreme Court’s recognition of a constitutional right to reproductive choice. Speaking at a 1997 rally, Pryor said: “I will never forget January 22, 1973, the day seven members of our highest court ripped the Constitution and ripped out the life of millions of unborn children.”18 Later that same year, Pryor criticized the Supreme Court’s ruling in Planned Parenthood v. Casey for “preserv[ing] the worst abomination of constitutional law in our history: Roe v. Wade.”19 In another speech, he said that Supreme Court decisions affirming reproductive choice for women (Roe) and rights for the accused (Miranda) have been “the worst examples of judicial activism.”20 After the Court struck down Nebraska’s ban on “partial birth abortion,”21 Pryor stated that he personally agreed with Justice Scalia’s dissent that “the Constitution says nothing about a right to abortion.”22 Pryor’s views on choice have not changed, as demonstrated by his response to a 2002 NARAL Pro-Choice America Survey of Attorneys General: “Abortion is murder, and Roe v. Wade is an abominable decision.”23 He went on to express his opposition to abortion even in cases of rape or incest, supporting only a narrow exception for instances in which a pregnant woman’s life is endangered.24 As Alabama’s Attorney General, Pryor has supported legislative and judicial efforts to undermine reproductive freedom. In 1999, he endorsed an Alabama bill that would have permitted a judge to appoint a guardian ad litem for the fetus of any underage woman seeking an abortion.25 Pryor also successfully defended against a challenge in federal court to an Alabama law requiring physicians to talk with women about the risks of abortion and alternatives at least 24 hours before performing the procedure.26 He also worked to undercut the right to reproductive choice on a national level by joining an anti-choice amicus brief to the Supreme Court, defending state laws that banned so-called “partial birth abortions,” in Stenberg v. Carhart.27 Pryor has also publicly expressed skepticism about the need for legal protections that guarantee gender equality. After the Supreme Court ruled that the U.S. Constitution required the previously all-male Virginia Military Institute to admit women, Pryor said: “Never mind the fact that the people of the United States did not ratify the Equal Rights Amendment. We now have new rules of political correctness for decision-making in the equal protection arena.”28 Pryor’s comments have also revealed an insensitivity to the barriers that victims of domestic violence face in the criminal justice system.29 When protesting a provision of the Violence Against Women Act that allowed victims of gender-motivated violence to sue their attackers in federal court, Pryor commented: “The continuing existence of violence in our society is hardly proof of bias against its victims. In fact, statistics show that any bias that does exist runs in favor of – not against – women. For example, in cases of unprovoked murders of spouses, male prison sentences average more than twice as long as those for women.”30 Rights of Gays and Lesbians During his tenure in the office of the Alabama Attorney General, Pryor has taken a number of actions hostile to the rights of gays and lesbians. In 1995, as a Deputy Attorney General, Pryor and then-Attorney General Jeff Sessions joined an amicus brief in support of the state of Colorado in its defense of a voter initiative that prohibited local governments from enacting laws protecting gays and lesbians from discrimination.31 Colorado’s Supreme Court had struck down the initiative as a denial of equal protection, and the state appealed. Explaining why his office felt compelled to join the brief, Pryor stated: “The attorney general of Alabama felt strongly that we don’t need to be finding new rights in our Constitution [because] we’ve done enough of that in recent years.”32 In a speech to the Federalist Society, Pryor criticized the Supreme Court’s 6-3 decision invalidating the Colorado initiative, as well as its decision in U.S. v. Virginia [striking down the Virginia Military Institute’s exclusion of women], as “both antidemocratic and insensitive to federalism.”33 Pryor vowed to “aggressively” defend Alabama’s law banning sodomy between unmarried adults, and successfully defended the statute in a state court challenge.34 Later, Pryor filed an anti-gay brief in Lawrence v. Texas on behalf of Alabama urging the Supreme Court to uphold Texas’ law banning only same-sex sodomy.35 Such was his interest in the case that Pryor unsuccessfully petitioned the Court for leave to participate in oral argument.36 In this brief, Pryor argues that the Constitution may protect the right of gay and lesbian people to be gay, but it certainly does not protect them from engaging in consensual, intimate sexual relations: The Texas statute in question does not criminalize petitioners’ sexual orientation, which may or may not be a matter of choice and thus may arguably be protected from state discrimination by the Equal Protection Clause of the Fourteenth Amendment. Rather, the Texas anti-sodomy statute criminalizes petitioners’ sexual activity, which is indisputably a matter of choice. Petitioners’ protestations to the contrary notwithstanding, a constitutional right that protects “the choice of one’s partner” and “whether and how to connect sexually” must logically extend to activities like prostitution, adultery, necrophilia, bestiality, possession of child pornography, and even incest and pedophilia (if the child should credibly claim to be “willing”).37 Recent press reports have drawn comparisons between Pryor’s comments and those of Senator Rick Santorum (R-PA), who likened homosexuality to bigamy, polygamy, incest and adultery.38 Pryor’s comments have provoked criticism from the Log Cabin Republicans, who indicated that they would oppose Pryor’s nomination, and the Gay and Lesbian Alliance Against Defamation, who expressed serious concerns about Pryor’s ability to impartially preside over cases involving gays and lesbians.39 Rights of the Disabled Pryor’s has fought aggressively to prevent people with disabilities from enforcing their rights under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. Pryor is best known for his advocacy in Board of Trustees of Alabama v. Garrett,40 which severely limited the rights of people with disabilities to enforce the ADA. Pryor argued that Congress had no power under the Fourteenth Amendment to apply Title I of the ADA, which prohibits employment discrimination against the disabled, to state employers. He and fellow states’ rights advocate Jeffrey Sutton persuaded the Supreme Court’s conservative majority to rule, 5-4, that state employees cannot sue their employers for damages under Title I of the ADA. Pryor has also argued that Congress has no power to apply Title II of the ADA, which requires accommodations for persons with disabilities in public services, programs, and activities, to state entities. In Pennsylvania Dep’t. of Corrections v. Yeskey41 and Medical Board of California v. Hanson42, Pryor filed amicus briefs with the Supreme Court arguing that Congress had exceeded its Fourteenth Amendment power in applying Title II to the states.43 Pryor has also used federalism arguments to prevent people with disabilities from enforcing their rights under Section 504 of the Rehabilitation Act. On remand from the Supreme Court in the Garrett case, Patricia Garrett sought to pursue her Section 504 claim that the University of Alabama had demoted because she developed breast cancer. The trial court rejected her claims based on Pryor’s argument that Congress could not require states to waive their immunity under Section 504 in exchange for accepting federal funds.44 Ms. Garrett is appealing that ruling to the Eleventh Circuit Court of Appeals. Race Discrimination By contrast with his outspoken hostility to the rights of women and gays and lesbians, Pryor has been quite reticent in speaking about, and taking action on, issues of race. His record in this area is mixed, at best. He has called for repeal of a key section of the Voting Rights Act, but defended a redistricting plan that created majority-minority districts. He called for repeal of Alabama’s clearly unconstitutional ban on interracial marriage, but has filed a number of briefs urging the Supreme Court to reach results that adversely affect minorities. In 1997, Pryor urged Congress to consider abolishing a key provision of the Voting Rights Act, which has been critical in securing the right to vote in states with a stark history of racial discrimination. While testifying before a Congressional Committee, Pryor urged the Committee to “consider seriously…the repeal or amendment of Section 5 of the Voting Rights Act,” which requires Justice Department pre-clearance approval of state and local changes to voting procedures that may have an adverse impact on minority voters. He labeled Section 5 an “affront to federalism and an expensive burden that has far outlived its usefulness.”45 By contrast, in Sinkfield v. Kelley,46 Pryor joined African-American voters in successfully appealing to the Supreme Court a lower court decision that had invalidated a state redistricting plan that had maximized the number of majority-minority legislative districts as unconstitutional racial gerrymandering. The plan had increased the number of both African Americans and Republicans in the legislature, while reducing the number of white Democrats.47 The Supreme Court, in a per curiam opinion, reversed the lower court ruling, finding that the white voters who had challenged the plan lacked standing.48 Pryor did publicly support efforts to repeal Alabama’s ban on interracial marriage, a position not adopted by every Alabama politician.49 Of course, this provision had been rendered unconstitutional and inoperative ever since the Supreme Court’s 1967 decision in Loving v. Virginia.50 The Reverend C.T. Vivian, who had been an aide to the Reverend Martin Luther King Jr., was unimpressed with Pryor’s position on the interracial marriage ban: “You’d have to be a Klansman to be opposed to repealing that.”51 Pryor has also filed a number of briefs in the U.S. Supreme Court that take positions adverse to the interests of racial and ethnic minorities. In Alexander v. Sandoval, a challenge to Alabama’s policy of administering drivers’ license tests only in English, Pryor successfully argued that the Hispanic plaintiff could not bring suit under the disparate impact regulations of Title VI of the 1964 Civil Rights Act. In Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, Pryor joined other states in urging the Supreme Court to deny attorneys’ fee awards to plaintiffs’ counsel when state defendants “voluntarily” rectify violations of federal law in response to a suit, thereby making it more difficult for victims of civil rights violations to find counsel.52 And, in Chicago v. Morales, Pryor joined other states in unsuccessfully defending the constitutionality of an anti-loitering ordinance that Chicago police were using disproportionately to target minority youth.53 Pryor’s nomination has divided the African American community in Alabama. Pryor has received the support of at least three prominent African-American Democrats in Alabama: U.S. Representative Artur Davis (D-Birmingham), longtime state representative Alvin Holmes (D-Montgomery), and Joe Reed, the chairman of the Alabama Democratic Conference.54 By contrast, a group of civil rights activists, including Fred Shuttlesworth, Martin Luther King (III), Dick Gregory, and the Reverend C.T. Vivian, publicly announced their opposition to Pryor’s nomination on the fortieth anniversary of the Birmingham civil rights marches.55 Directory: blog blog -> Ap u. S. History presidents list the Young Republic, 1788-1815 George Washington, 1789-1797 blog -> Sci-145: Introduction to Meteorology Lecture Note Packet 3 Chapter 9: weather forecasting blog -> Critical Kent: The Topographies Project: Beaches (2015). Background notes for Explorations of: From Whitstable into the Thanet Coast blog -> Atlantic Basin and eastern Pacific they are called hurricanes blog -> Science 10 Is Weather Becoming More Extreme? Sarah Stride blog -> Heuristic Theorizing: Proactively Generating Design Theories blog -> Sportswalk announces 2011 inductees the San Pedro Sportswalk to the Waterfront blog -> Seamheads at sabr 40 Download 172.55 Kb. Share with your friends:
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