Jewish World Review June 18, 2003 / 18 Sivan, 5763

Terry Eastland

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A judge shows he can set aside his strong views | William H. Pryor, the Alabama attorney general, is a nominee for a seat on the federal appeals court for Alabama, Georgia and Florida. Last week, he came to Washington for his confirmation hearing, and opponents of his nomination show ed up in force. The Senate vote on Mr. Pryor could be close — assuming there is a vote, as there should be. The central question about Mr. Pryor is whether he will follow the law even when it conflicts with his personal views or the interests of his party.

As it happens, Mr. Pryor has strong views on many issues, including Roe vs. Wade, the 1973 decision declaring a constitutional right to abortion. Mr. Pryor once described Roe as "the worst abomination in the history of constitutional law." Asked during the hearing whether he still believed that, Mr. Pryor said, "I do." Asked later whether the quote was accurate, he said it was, adding, "I believe that not only is [Roe] unsupported by the text and structure of the Constitution, but it has led to a morally wrong result ... the slaughter of millions of innocent unborn children." Yet more questions about his views of abortion were asked, and Mr. Pryor stayed his course, noting that the reason he thinks abortion is morally wrong is that it is "the taking of human life."

Mr. Pryor's views on abortion and Roe vs. Wade are deeply felt and quite the opposite of those of many Democratic senators. He told the committee that, his personal views notwithstanding, he would adhere, as a circuit judge, to the Supreme Court's abortion jurisprudence.

As evidence of his ability to distinguish between his personal views on abortion and his law enforcement duties, Mr. Pryor cited an order he issued to Alabama district attorneys on the state's newly enacted partial-birth abortion ban. Finding the law less protective of abortion rights than the Supreme Court has demanded, Mr. Pryor told the district attorneys to construe it consistently with the court's decisions.

In other contexts where it might be supposed that Mr. Pryor could default on his law enforcement duty, he hasn't done so. When Republican Fob James was governor, he asked Mr. Pryor, whom he had appointed attorney general, to support a policy of allowing teachers to lead students in prayer. Mr. Pryor refused to do so, pointing out that Supreme Court decisions permit only voluntary, student-led prayer.

More examples: When Republicans wanted Mr. Pryor to support their voting rights lawsuit, he found their position at odds with Supreme Court precedent. He argued the Democratic position and won in the Supreme Court. Also, when Republicans asked Mr. Pryor to support a lawsuit denying teachers the right to serve as legislators, he turned them down because their position was contrary to the Alabama Constitution.

Mr. Pryor thus is to be believed when he says, as he often did during his hearing, that he is able to carry out what the law commands.

Or is he?

Mr. Pryor also has made comments about the Supreme Court. Most notably, the day after Bush vs. Gore was decided, he said he had hoped the ruling would be 5-to-4 because he wanted "Gov. Bush to have a full appreciation of the judiciary and judicial selection so that we can have no more appointments like David Souter." Mr. Souter, appointed in 1990, has joined the court's liberal bloc and dissented in federalism cases that Mr. Pryor has won.

Do those comments suggest that Mr. Pryor really sees the judiciary as essentially political in nature, that he has contempt for judges with whom he disagrees and that he himself — his record of law enforcement in Alabama notwithstanding — wouldn't be able to achieve the independence we value in a judge? Or should they be understood simply as comments that evince realism about how closely divided the court is and that frankly acknowledge the importance of carefully choosing nominees for the court?

If it is the latter, Mr. Pryor was saying no more than what many who follow the court have said. Indeed, he was saying no more than what the interest groups opposing his nomination — and that are preparing to take on any Bush nominees for the high court — have said. Or, for that matter, what senators on both sides of the aisle have said — the very people, of course, who will decide whether Mr. Pryor becomes a judge.

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JWR contributor Terry Eastland is is publisher of The Weekly Standard.Comment by clicking here.

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© 2002, Terry Eastland