Defining judicial deviancy down

Bush's nomination of right-wing caricature William Pryor to the 11th Circuit takes his court-packing efforts to new depths.

Topics: George W. Bush,

Defining judicial deviancy down

The nomination of William Pryor to the U.S. Court of Appeals for the 11th Circuit should teach liberals once and for all never to underestimate George W. Bush’s chutzpah. Just when it seemed the president couldn’t possibly find any potential judges more right-wing than those he’s already appointed, he outdid himself. “It’s an extraordinary public record,” Ralph Neas, president of the civil liberties watchdog group People for the American Way, says of Pryor. “Rarely do you see someone so bad on so many issues at a relatively young age.”

Pryor, the 40-year-old attorney general of Alabama, holds far-right positions on women’s rights, abortion, gay rights, the environment, criminal justice and the separation of church and state. Speaking at Pryor’s hearing before the Senate Judiciary Committee yesterday, Sen. Chuck Schumer, D-N.Y., said, “In a way, his views are an unfortunate stitching together of the worst parts of the most troubling judges we’ve seen thus far.”

Because Bush nominated him on April 9, two and a half weeks into the war with Iraq, Pryor initially didn’t receive as much scrutiny as judges like Priscilla Owen and Charles Pickering, both of whom the president renominated after a Democratic Senate rejected them. (Pickering is still awaiting a second hearing, while Owen is being filibustered by Senate Democrats).

Yet Pryor’s rhetoric over the years is at least as extreme as that of former Senate Majority leader Trent Lott, R-Miss., who stepped down in December after he was criticized for comments widely deemed racist, and Sen. Rick Santorum, R-Pa., whose anti-gay remarks in April created an uproar. And if his nomination succeeds, he’ll have a lifetime spot on one of the 12 courts that make up the second-highest judicial authority in America.

Pryor calls Roe vs. Wade “the worst abomination of constitutional law in our history” — meaning, Schumer noted, that he considers it worse than such dark moments in U.S. judicial history as Plessy vs. Ferguson, the 1896 decision legitimizing segregation, or Dred Scott, the 1857 decision affirming that slaves were property.

Pryor also believes that states have the rights to criminalize gay sex. Pryor echoed Santorum’s recent anti-gay remarks in a brief submitted to the Supreme Court on behalf of a Texas anti-sodomy statute in the Lawrence vs. Texas case.



The Texas statute, he wrote, is not discriminatory because it doesn’t make it illegal to be gay. “Rather,” he wrote, “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’).”

A fervent Christian and dedicated opponent of what he has referred to as the “so-called separation of church and state,” Pryor told an audience at a 1997 rally in favor of displaying the Ten Commandments in the Alabama Supreme Court building, “God has chosen, through his son Jesus Christ, this time and this place for all Christians … to save our country and save our courts.”

Judith Schaeffer, People for the American Way’s deputy legal director, says that what’s most disturbing about Pryor is his judicial philosophy, which puts states’ rights ahead of the Bill of Rights. He has consistently argued that civil liberties issues should be decided by majority vote rather than recourse to the Constitution. “One of the tasks of the next century will be to restore lawmaking and policymaking to the democratic process, not the legal process,” he said at a 1999 commencement speech.

Indeed, in Lawrence vs. Texas, he argued that the court erred in even agreeing to hear the case, since the “proper loci” for such issues are “the legislatures of the 50 States.” “Accepting petitioners’ invitation will take this Court perilously down the path toward permanently ensconcing itself as the final arbiter of the kulturkampf that is currently being waged over such sensitive and divisive social issues as abortion, sexual freedom, gender identity, the definition of the family, adoption of children, euthanasia, stem cell research, human cloning, and so forth,” he wrote. “If Roe v. Wade and its progeny have taught one lesson, it is that judicial attempts to resolve social disputes of this nature do not have a calming and stabilizing effect on our society.”

“His view is that the Constitution does not apply to certain issues pertaining to individual rights and liberties, such as school prayer and gay rights,” Schaeffer says. “He gave an example at his hearing — he said that the Supreme Court should not be able to tell Alabama whether or not it can carry out death sentences by using the electric chair. He said the court should not be able to say that using the electric chair constitutes cruel and unusual punishment.” Such logic, she says, “stands the Constitution directly on its head.”

There is, however, one case in which Pryor sided with the Supreme Court against states’ rights. He was the only state attorney general in America to file an amicus brief supporting the Supreme Court’s intervention in Bush vs. Gore.

“Pryor is nothing but a right-wing Republican activist who wants to get on the bench,” says Jamin Raskin, a professor of constitutional law at American University. “He reads the law completely through the prism of his political preferences and biases.”

As grim a farce as the Pryor nomination is, liberals can take comfort in the possibility that he’ll never actually ascend to the bench. “I certainly feel comfortable saying I believe the Senate will reject this nomination,” says Neas. Adds Raskin, “Up until this point, not a single Republican senator has voted against a single nominee to the federal circuit bench. But if senators like [Arlen] Specter or [Olympia] Snowe can’t vote against Pryor, then they really have become robotic partisans.”

If no Republican moderates prove willing to defect from the party line, Democrats may filibuster the nomination, just as they have with Owen and Miguel Estrada.

Yet even if Bush doesn’t get Pryor on the bench, his nomination, like so many other Bush policies, will likely have the effect of pushing the definition of “mainstream” even further to the right.

“In the big picture, I think the Bush administration is trying to shift everything judicial so far to the right that any Supreme Court nominee they come up with is going to look like a centrist,” says Raskin.

“One is left speechless at the people they’re bringing forward,” he continues. “Things have gotten way, way out of whack.”

Michelle Goldberg is a frequent contributor to Salon and the author of "Kingdom Coming: The Rise of Christian Nationalism" (WW Norton).

More Related Stories

Featured Slide Shows

  • Share on Twitter
  • Share on Facebook
  • 1 of 11
  • Close
  • Fullscreen
  • Thumbnails

    Ten spectacular graphic novels from 2014

    Beautiful Darkness by Fabien Vehlmann & Kerascoët
    Kerascoët's lovely, delicate pen-and-watercolor art -- all intricate botanicals, big eyes and flowing hair -- gives this fairy story a deceptively pretty finish. You find out quickly, however, that these are the heartless and heedless fairies of folk legend, not the sentimental sprites beloved by the Victorians and Disney fans. A host of tiny hominid creatures must learn to survive in the forest after fleeing their former home -- a little girl who lies dead in the woods. The main character, Aurora, tries to organize the group into a community, but most of her cohort is too capricious, lazy and selfish to participate for long. There's no real moral to this story, which is refreshing in itself, beyond the perpetual lessons that life is hard and you have to be careful whom you trust. Never has ugly truth been given a prettier face.

    Ten spectacular graphic novels from 2014

    Climate Changed: A Personal Journey Through the Science by Philippe Squarzoni
    Squarzoni is a French cartoonist who makes nonfiction graphic novels about contemporary issues and politics. While finishing up a book about France under Jacques Chirac, he realized that when it came to environmental policy, he didn't know what he was talking about. "Climate Changed" is the result of his efforts to understand what has been happening to the planet, a striking combination of memoir and data that ruminates on a notoriously elusive, difficult and even imponderable subject. Panels of talking heads dispensing information (or Squarzoni discussing the issues with his partner) are juxtaposed with detailed and meticulous yet lyrical scenes from the author's childhood, the countryside where he takes a holiday and a visit to New York. He uses his own unreachable past as a way to grasp the imminent transformation of the Earth. The result is both enlightening and unexpectedly moving.

    Ten spectacular graphic novels from 2014

    Here by Richard McGuire
    A six-page version of this innovative work by a regular contributor to the New Yorker first appeared in RAW magazine 25 years ago. Each two-page spread depicts a single place, sometimes occupied by a corner of a room, over the course of 4 billion years. The oldest image is a blur of pink and purple gases; others depict hazmat-suited explorers from 300 years in the future. Inset images show the changing decor and inhabitants of the house throughout its existence: family photos, quarrels, kids in Halloween costumes, a woman reading a book, a cat walking across the floor. The cumulative effect is serene and ravishing, an intimation of the immensity of time and the wonder embodied in the humblest things.

    Ten spectacular graphic novels from 2014

    Kill My Mother by Jules Feiffer
    The legendary Pulitzer Prize-winning cartoonist delivers his debut graphic novel at 85, a deliriously over-the-top blend of classic movie noir and melodrama that roams from chiaroscuro Bay City to Hollywood to a USO gig in the Pacific theater of World War II. There's a burnt-out drunk of a private eye, but the story is soon commandeered by a multigenerational collection of ferocious women, including a mysterious chanteuse who never speaks, a radio comedy writer who makes a childhood friend the butt of a hit series and a ruthless dame intent on making her whiny coward of a husband into a star. There are disguises, musical numbers and plenty of gunfights, but the drawing is the main attraction. Nobody convey's bodies in motion more thrillingly than Feiffer, whether they're dancing, running or duking it out. The kid has promise.

    Ten spectacular graphic novels from 2014

    The Motherless Oven by Rob Davis
    This is a weird one, but in the nervy surreal way that word-playful novels like "A Clockwork Orange" or "Ulysses" are weird. The main character, a teenage schoolboy named Scarper Lee, lives in a world where it rains knives and people make their own parents, contraptions that can be anything from a tiny figurine stashable in a pocket to biomorphic boiler-like entities that seem to have escaped from Dr. Seuss' nightmares. Their homes are crammed with gadgets they call gods and instead of TV they watch a hulu-hoop-size wheel of repeating images that changes with the day of the week. They also know their own "death day," and Scarper's is coming up fast. Maybe that's why he runs off with the new girl at school, a real troublemaker, and the obscurely dysfunctional Castro, whose mother is a cageful of talking parakeets. A solid towline of teenage angst holds this manically inventive vision together, and proves that some graphic novels can rival the text-only kind at their own game.

    Ten spectacular graphic novels from 2014

    NOBROW 9: It's Oh So Quiet
    For each issue, the anthology magazine put out by this adventurous U.K.-based publisher of independent graphic design, illustration and comics gives 45 artists a four-color palette and a theme. In the ninth issue, the theme is silence, and the results are magnificent and full of surprises. The comics, each told in images only, range from atmospheric to trippy to jokey to melancholy to epic to creepy. But the two-page illustrations are even more powerful, even if it's not always easy to see how they pertain to the overall concept of silence. Well, except perhaps for the fact that so many of them left me utterly dumbstruck with visual delight.

    Ten spectacular graphic novels from 2014

    Over Easy by Mimi Pond
    When Pond was a broke art student in the 1970s, she took a job at a neighborhood breakfast spot in Oakland, a place with good food, splendid coffee and an endlessly entertaining crew of short-order cooks, waitresses, dishwashers and regular customers. This graphic memoir, influenced by the work of Pond's friend, Alison Bechdel, captures the funky ethos of the time, when hippies, punks and disco aficionados mingled in a Bay Area at the height of its eccentricity. The staff of the Imperial Cafe were forever swapping wisecracks and hopping in and out of each other's beds, which makes them more or less like every restaurant team in history. There's an intoxicating esprit de corps to a well-run everyday joint like the Imperial Cafe, and never has the delight in being part of it been more winningly portrayed.

    Ten spectacular graphic novels from 2014

    The Shadow Hero by Gene Luen Yang and Sonny Liew
    You don't have to be a superhero fan to be utterly charmed by Yang and Liew's revival of a little-known character created in the 1940s by the cartoonist Chu Hing. This version of the Green Turtle, however, is rich in characterization, comedy and luscious period detail from the Chinatown of "San Incendio" (a ringer for San Francisco). Hank, son of a mild-mannered grocer, would like to follow in his father's footsteps, but his restless mother (the book's best character and drawn with masterful nuance by Liew) has other ideas after her thrilling encounter with a superhero. Yang's story effortlessly folds pathos into humor without stooping to either slapstick or cheap "darkness." This is that rare tribute that far surpasses the thing it celebrates.

    Ten spectacular graphic novels from 2014

    Shoplifter by Michael Cho
    Corinna Park, former English major, works, unhappily, in a Toronto advertising agency. When the dissatisfaction of the past five years begins to oppress her, she lets off steam by pilfering magazines from a local convenience store. Cho's moody character study is as much about city life as it is about Corinna. He depicts her falling asleep in front of the TV in her condo, brooding on the subway, roaming the crowded streets after a budding romance goes awry. Like a great short story, this is a simple tale of a young woman figuring out how to get her life back, but if feels as if it contains so much of contemporary existence -- its comforts, its loneliness, its self-deceptions -- suspended in wintery amber.

    Ten spectacular graphic novels from 2014

    Through the Woods by Emily Carroll
    This collection of archetypal horror, fairy and ghost stories, all about young girls, comes lushly decked in Carroll's inky black, snowy white and blood-scarlet art. A young bride hears her predecessor's bones singing from under the floorboards, two friends make the mistake of pretending to summon the spirits of the dead, a family of orphaned siblings disappears one by one into the winter nights. Carroll's color-saturated images can be jagged, ornate and gruesome, but she also knows how to chill with absence, shadows and a single staring eye. Literary readers who cherish the work of Kelly Link or the late Angela Carter's collection, "The Bloody Chamber," will adore the violent beauty on these pages.

  • Recent Slide Shows

Comments

0 Comments

Comment Preview

Your name will appear as username ( settings | log out )

You may use these HTML tags and attributes: <a href=""> <b> <em> <strong> <i> <blockquote>