The battle against Judge Pryor

President Bush's underhanded right-wing judicial appointment faces a constitutional challenge from the Sierra Club.

Published May 29, 2004 12:09AM (EDT)

Their plights gave new meaning to the phrase "appointed to the bench": Miguel Estrada, William Myers III and Janice Rogers Brown were among half a dozen right-wing judicial nominees that President Bush tried -- and failed -- to install as federal court judges. Stonewalling and filibusters by Senate Democrats consigned them to the dugout bench.

Now the Sierra Club is working to relegate Bush's most recent federal judicial appointee to the dugout as well, albeit after he's had a few at bats. William Pryor, former Alabama attorney general, has already made it onto the Atlanta-based 11th U.S. Circuit Court of Appeals, much to the chagrin of enviros, who point to his past efforts to weaken the Clean Water Act, the Endangered Species Act, and environmental-justice protections.

Senate Democrats successfully stymied Pryor's appointment for some 10 months, until Bush pushed it through via a recess appointment in February -- a move critics say was underhanded, if not illegal. Under the Constitution's "recess clause," the president is given the authority to fill judicial vacancies without Senate approval when Congress is in recess. In this case, however, the "recess" was a weeklong holiday in February, not one of the longer breaks typically dubbed recesses. Bush's move set off a firestorm of criticism from public-interest groups and Senate Dems, including Sen. Patrick Leahy, D-Vt., ranking member of the Senate Judiciary Committee, and Sen. Edward Kennedy, D-Mass., who questioned the constitutionality of the appointment.

Leahy called the recess appointment "an abuse of power" and continued, "This is unprecedented. Actions like this show the American people that this White House will stop at nothing to try to turn the independent federal judiciary into an arm of the Republican Party."

Last Wednesday, Pat Gallagher, director of the Sierra Club's Environmental Law Program, submitted a motion to remove Pryor from the pool of judges to be considered for a case filed in Atlanta by the Sierra Club and Georgia Forestwatch over the licensing of coal-fired power plants. Gallagher requested that Pryor be yanked from the suit "not because of his radical, neo-federalist views of the Constitution -- which make him unfit to make fair rulings on the environment -- but because his appointment was blatantly unconstitutional," he told Muckraker. If the Sierra Club is successful in proving this claim, Pryor's recess appointment will have to be officially yanked.

"We've known for some time that George Bush has a court-plan agenda to pack the federal courts with extremists," Gallagher added. "But in this case he's used extreme tactics and violated the Constitution to promote his agenda."

Pryor's office did not respond to Muckraker's request for comment.

Given Pryor's track record, it's clear his removal would be a boon to the environment. In 2001, while serving as Alabama's attorney general, he filed an amicus brief in Gibbs vs. Babbitt, asking the Supreme Court to overturn a federal ruling protecting endangered red wolves from being hunted on private land. The Supreme Court refused to take the case, giving clearance to Judge J. Harvie Wilkinson's ruling in the 4th Circuit Court in favor of wolf protection. Wilkinson lambasted Pryor's argument, saying it interpreted federal law in a way that would "place in peril the entire federal regulatory scheme for wildlife and natural-resource conservation."

Pryor also filed an amicus brief in 2000 asking the Supreme Court to reinterpret wetland protections under the Clean Water Act, in the famous case Solid Waste Authority of Northern Cook County (SWANCC) vs. U.S. Army Corps of Engineers. The court ultimately authorized the waste authority to use an isolated wetland for a garbage dump, but it took a much more moderate position than Pryor. His brief had argued that it is unconstitutional to federally regulate wetlands because it violates states' rights.

Pryor has also been an outspoken critic of the Clean Air Act's new-source review rules. In 2002 testimony before the Senate Environment and Public Works Committee and Senate Judiciary Committee, he argued that federal implementation of the rules "invade[s] the province of the states."

Topping it all off is Pryor's crusade against environmental justice. When a federal court in New Jersey indicated that it would allow private citizens to sue the state for permitting power plants that would disproportionately pollute minority and low-income communities, Pryor dismissed the move as "ridiculous," and in a speech to the environmental section of the Alabama Bar Association he made the staggering declaration that "environmental racism cases should fail generally."

And it's not just environmentalists who shudder at the thought of what Pryor could do with the power of a federal judgeship. Advocates for abortion rights and the separation of church and state, among many others, fear the ideological zealotry revealed in Pryor's rhetoric.

A die-hard pro-lifer, Pryor said in one speech that on the day Roe vs. Wade was decided, "seven members of our highest court ripped the Constitution, and ripped out the life of millions of unborn children." And Pryor waxed evangelical when rallying behind the judge who showcased the Ten Commandments in the Alabama Supreme Court building last year: "God has chosen, through his son Jesus Christ, this time and this place for all Christians ... to save our country and save our courts."

But who will save the country and the courts from Pryor?

Some observers say chances are slim that the Sierra Club will succeed in its effort to bump Pryor from the court, given that two previous efforts to oust recess-appointed judges have failed. But the group's lawyers rate their chances for success as "very high," according to Sierra Club senior attorney David Bookbinder. "The previous cases did not make the argument that the recess appointment was not in fact made during an official recess -- a scenario so preposterous that the judges [on the former cases] said it was one they would never expect to happen," he explained.

But even if Pryor weathers the club's suit, enviros can take some comfort in the fact that his recess appointment expires at the end of 2005, at which point he would have to be renominated or step down from the bench. He may do some damage in a year and a half, but at the relatively young age of 42, there's no telling what he could accomplish with a lifetime appointment.

By Amanda Griscom

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