Oppose the Nomination of Pryor

Recipient: U.S. Senate

On behalf of the Leadership Conference on Civil Rights (LCCR), the nation’s oldest, largest, and most diverse civil and human rights coalition, we write to renew our opposition to the confirmation of William Pryor to the U.S. Court of Appeals for the Eleventh Circuit, on which he has currently sat since his temporary recess appointment in February 2004. Our exhaustive and careful review of Pryor’s record reveals him to be an ultra-conservative legal activist whose record disqualifies him from a lifetime appointment to the federal judiciary.

As Alabama Attorney General, Pryor demonstrated a commitment to rolling back the clock on federal protections against discrimination based on race, gender, age, and disability. He pushed his extremist agenda not only through litigation in which Alabama was a party, but also by electing to file amicus briefs in cases in which Alabama was not involved, and through numerous public speeches that make clear that the ideological positions he has taken in these cases are his own. His brief record on the bench thus far does not indicate any shift away from the harmful legal views he has long held.

Pryor is one of the architects of the so-called “states’ rights” movement that seeks to limit the power of Congress to enact legislation that protects our civil and constitutional rights. For example, in United States v. Morrison, 529 U.S. 598 (2000), the Supreme Court ruled 5-4 that the federal remedy for victims of sexual assault and violence in the Violence Against Women Act (VAWA) was unconstitutional. As Pryor has proudly stated, Alabama was the only state to challenge the constitutionality of VAWA, while 36 states filed briefs urging that the provision be held constitutional. Pryor has also argued 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, and the Family and Medical Leave Act.

In a number of these cases, Pryor has specifically urged restrictions on federal authority with respect to individual and other rights that were much more severe than the Court’s final rulings. In Kimel v. Florida Board of Regents, 528 U.S. 62 (2000), Pryor suggested that Congress had no power to legislate under the Fourteenth Amendment with respect to age discrimination because it was not concerned with a “suspect” classification like race or national origin, a radical theory that would further limit Congress’ ability to protect individual rights. In Alexander v. Sandoval, 532 U.S. 275 (2001), Pryor did more than argue that there is no private right of action to enforce Title VI regulations that prohibit actions with a discriminatory impact; he suggested that implying such a right would violate state sovereignty.

Pryor has also urged Congress to consider eliminating a key provision of the Voting Rights Act, which protects the right to vote for African-Americans and other racial minorities. While testifying before a Congressional Committee in July 1997, Pryor urged the Committee to “consider seriously…the repeal or amendment of Section 5 of the Voting Rights Act,” which he labeled “an affront to federalism and an expensive burden that has far outlived its usefulness.” Given the importance of Section 5 of the Voting Rights Act to the ability of African-Americans and other racial minorities to achieve equal opportunity in voting, this call for its repeal is deeply disturbing.

Pryor has also criticized the Supreme Court’s decision in <I.UNITED i Virginia< v. States>, 518 U.S. 515 (1996), in which it held unconstitutional the denial of admission to women by the Virginia Military Institute, a public university. Disparaging the constitutional rights of women at stake, Pryor criticized this decision, citing it as an example of the Court's having been "both antidemocratic and insensitive to federalism."

Over the course of his career in the Attorney General’s office, Pryor has also been a vocal opponent of the rights of criminal defendants. In Hope v. Pelzer, 536 U.S. 730 (2002), he vigorously defended Alabama’s practice of handcuffing prison inmates to outdoor hitching posts if they refused to work on chain gangs or otherwise disrupted them, arguing that the practice did not violate the prisoner’s right to be free from cruel and unusual punishment. The case involved an inmate, Larry Hope, who had been handcuffed to a hitching post in the hot sun on several occasions, and was allegedly denied access to water and the bathroom. The Supreme Court rejected Pryor’s arguments, citing the “obvious cruelty inherent in the practice” and calling the practice “antithetical to human dignity” and the circumstances “both degrading and dangerous.” Further, in a July 2000 speech, Pryor was outspoken in his disdain for the Supreme Court’s reaffirmation, in Dickerson v. United States, 530 U.S. 428 (2000), of the constitutional protection against self-incrimination first articulated more than twenty years ago in Miranda v. Arizona. Pryor called the Dickerson decision, authored by Chief Justice Rehnquist, an “awful ruling[] that preserved the worst example[] of judicial activism.”

His record as a recess appointee, while sparse, shows the same hostility towards the accused. In United States v. Levy, 391 F.3d 1327 (11th Cir. 2004), Pryor voted twice to prevent a defendant from obtaining a jury trial on sentencing enhancements that had been imposed by a trial court. This occurred after the U.S. Supreme Court held in Blakely v. Washington, 124 S.Ct. 2531 (2004), that only a jury can determine facts that would result in a sentence beyond the statutory maximum. His failure to apply a newly declared constitutional ruling to a pending appeal shows a troubling disregard for Supreme Court precedent and fundamental notions of fairness.

Pryor has also taken a number of actions hostile to the rights of gays and lesbians. In 2002, Pryor filed an anti-gay amicus brief on behalf of Alabama in Lawrence v. Texas, 539 U.S. 558 (2003), urging the Supreme Court to uphold Texas’ law banning same-sex sodomy. Pryor argued that 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.” In Lofton v. Secretary of Dep’t of Children and Family Svcs., 377 F.3d 1275 (11th Cir. 2004), Pryor cast a deciding vote to prevent an en banc rehearing of an 11th Circuit ruling that upheld a Florida law barring gays and lesbians from adopting children.

In light of William Pryor’s record of hostility to important civil rights principles, including his leadership in the so-called “states’ rights” movement that seeks to take away Congress’ power to enact legislation protecting the rights of individuals to be free from discrimination, we urge you to reject his confirmation to the U.S. Court of Appeals for the Eleventh Circuit. If you have any questions or need further information, please contact Nancy Zirkin, LCCR Deputy Director/Director of Public Policy, at (202) 263-2880, or Rob Randhava, LCCR Senior Counsel, at (202) 263-2852.

Sincerely,

Wade Henderson
Executive Director

Nancy Zirkin
Deputy Director