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Jewish World Review June 12, 2003 / 12 Sivan, 5763

Nat Hentoff

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Bush plays into the Dems' hands | The war in the Senate over the president's nominees for federal judgeships has never been fiercer. The Democrats, for the first time in our history, are filibustering certain presidential choices for circuit courts of appeals, a level just below the U.S. Supreme Court. But now Bush has played into the hands of the Democrats by nominating Alabama Attorney General Bill Pryor to the 11th Circuit Court of Appeals.

Were I on the Senate Judiciary Committee, I would unhesitatingly vote against Pryor, because his clear record and public statements reveal that he would be the very definition of a judicial activist, letting his hostility toward key parts of the Bill of Rights determine his votes. But I would also urge my colleagues to send his nomination to the floor so that the entire Senate can vote on him -- as the Constitution requires.

I would not vote against Pryor because he is a conservative -- in the current battles over nominees, I would have voted for conservatives Priscilla Owen and Charles Pickering, because their opponents have distorted their records. But Pryor is capable of such extremism that a unanimous U.S. Supreme Court, in a decision written by Antonin Scalia, rejected Pryor's definition of federalism, which was included in his amicus brief and claimed municipalities have a "state sovereignty" right to be exempted from federal laws (Jinks v. Richland County).

Not even the 19th-century secessionists advocated such reckless undermining of federal law. And Justice Scalia, dismissing Pryor's argument, is hardly one of the Court's liberals. As for the separation of church and state, Pryor, in a speech four years ago to the Christian Coalition, declared unambiguously that "we derive our rights from G-d and not from government." Why, then, do we have a Constitution in which there is no mention of God, except for the date of the end of the 1787 Constitutional Convention? And what of American citizens who are nonbelievers? If government abuses their rights, have they no recourse but a religious conversion?

With regard to Pryor's capacity as a judge, to deal fairly with all litigants and their attorneys before him, there is this statement by Pryor at a rally supporting the display of the Ten Commandments in the rotunda of the Alabama Judicial Building: "I became a lawyer because I wanted to fight the ACLU -- the American Anti-Civil Liberties Union." Will Judge Pryor rescue himself in all cases in which the American Civil Liberties Union has provided the attorney of record?

Then there was Pryor's vigorous brief to the Supreme Court, in Hope v. Pelzer (2002), defending Alabama's practice of handcuffing unruly prisoners to chest-high metal bars with rings attached (hitching posts) for long periods of time. A 6-to-3 majority of the Court ruled that this form of discipline was a clear violation of the Eighth Amendment's prohibition of cruel and unusual punishment.

The practice, said the majority -- turning away Pryor's legal brief -- was "antithetical to human dignity" and "both degrading and dangerous."

Pryor's support of capital punishment is shared by the president, but Pryor, in his ardor, said to the Supreme Court -- as was heard in a National Public Radio May 12 profile -- that the electric chair in his state "remains a method that is instantaneous and painless."

But overwhelming evidence contradicts Pryor's claim. In 1983, for instance, John Evans caught on fire during an Alabama execution and was not pronounced dead until 20 minutes later. In 1989, it took three applications of electricity before Horace Dunkins was terminated in Alabama's electric chair. And a 1991-2000 report on executions in the state showed severe burning, scarring and other traumas in the bodies of many prisoners sent "painlessly" to eternity in that electric chair.

In 1999, Pryor was a founder of the Republican Attorneys Generals Association (part of the Republican National Committee). The RAGA took in contributions, as reported in the Washington Post (March 30, 2002), from powerful corporations involved in, or trying to head off, lawsuits against them by some of the states whose attorney generals were RAGA members. Pryor said that accepting money from such sources "does not create a conflict of interest."

How does he define "conflict of interest?"

As surely as night follows day, there will be a furious, tumultuous Senate battle when Bush has his first chance to nominate a Supreme Court Justice. By deciding to nominate Bill Pryor to the federal bench now, the president has thrown red meat to the Democrats, and most likely will create an even more divisive national debate on his eventual choice for the Supreme Court. If Karl Rove is as judicious a presidential advisor as he is purported to be, I wonder if, for once, his fabled research skills failed him this time.

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JWR contributor Nat Hentoff is a First Amendment authority and author of numerous books. Send your comments to him by clicking here.

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