The Pryor appointment (and the NYT's continuing efforts to smear him)

President Bush has used his constitutional power to make recess appointments to the federal bench to appoint Alabama Attorney General William H. Pryor to the United States Court of Appeals for the Eleventh Circuit, which hears appeals from district courts in Alabama, Georgia, and Florida. Pryor graduated magna cum laude in 1987 from Tulane University School of Law, where he was editor in chief of the Tulane Law Review, and he clerked for one of the heroes of the civil rights revolution in the South, the late John Minor Wisdom of the Fifth Circuit. In 2002, despite having taken some politically unpopular stands (see below), he was re-elected as Alabama's Attorney General with 59 percent of the votes — a higher percentage than any other statewide candidate drew.

The appointment drew immediate attacks from the usual suspects, including a predictably slanted "news" article from the New York Times:

Mr. Pryor is known for, among other things, defending the right of high school athletes to pray "spontaneously" and for his initial\*/ support of an Alabama state judge who posted the Ten Commandments in his courtroom and erected a monument engraved with the Commandments in the Supreme Court rotunda.

What liberal media, they ask? Let's start with this paragraph right here, because the slanted, partial truthtelling it engages in amounts to yet another smear of a good man's record in promoting the rule of law. Both of the controversies referenced by the Times actually do tell quite a bit about Pryor's fitness for the bench — but only if you actually bother with the facts.

In Chandler v. James, a federal district judge in Alabama had issued a sweeping ban on prayer in public schools, actually requiring school officials to forbid students or other private individuals from "all prayer or other devotional speech in situations which are not purely private, such as aloud in the classroom, over the public address system, or as part of the program at school-related assemblies and sporting events, or at a graduation ceremony." Pryor, as the state's attorney general, resisted making an extremist attack on that ruling before the Eleventh Circuit — to the point that then-Gov. Fob James hired his own lawyers to do an end-run around his own attorney general!

The Eleventh Circuit quite properly rejected Gov. James' own looney-tunes arguments — among them, that the states aren't bound by the First Amendment. Instead, the court largely followed the more moderate and carefully nuanced course — accommodating both the Free Exercise and Establishment Clauses of the First Amendment — that was suggested by Pryor. Regardless of whether he personally agreed with that Supreme Court precedent, Pryor quite properly conceded before the Eleventh Circuit "that, under Supreme Court precedent, [Alabama] may not prescribe prayer or allow state employees to lead, participate in or otherwise endorse prayer of any type during curricular or extracurricular events." But — again, closely following prior Supreme Court caselaw — he successfully persuaded the Eleventh Circuit that the district court could not "constitutionally enjoin [the school] from permitting student-initiated religious speech in its schools." And that ruling was re-affirmed by the Eleventh Circuit after the intervening US Supreme Court decision from a Texas case in 2000, Santa Fe Independent School District v. Doe. As the Eleventh Circuit wrote: "Santa Fe condemns school sponsorship of student prayer. Chandler condemns school censorship of student prayer. In their view of the proper relationship between school and prayer, the cases are complementary rather than inconsistent."

So what can we conclude about Pryor from this? That he was a capable lawyer, scholar, and advocate who respected and followed the rule of law, as announced and interpreted by prior decisions of the US Supreme Court — even when to do so, he had to take on his nominal boss, the governor of Alabama. Does the New York Times applaud Pryor for standing up to the forces in his home state who were urging civil disobedience and defiance of the US Supreme Court's precedents? Ummm, well, no — that only gets you points from the Times when there's a "(D)" after your name on the ballot.

The Times' attempted smear by associating Pryor with former Alabama Supreme Court Chief Justice Roy Moore is even more egregious. In fact, Pryor was not only the instrumentality of the state who vigorously and capably enforced the rule of law against Moore — personally cross-examining Moore and closing the final arguments during procedings to remove Moore from the bench (rather than delegating that role to a subordinate, as would have been far more usual, and far less controversial) — but Pryor also put his own career further at risk by speaking out eloquently as to why Moore and his supporters were wrong:

Mr. Pryor had a major role in Alabama's Ten Commandments drama. He thought the state had a duty to obey the injunction, and he urged the chief justice's colleagues to do that, notwithstanding his own view that there are ways of depicting the Ten Commandments in a courthouse that are constitutional. Mr. Pryor also represented the state in the ethics deliberation that resulted in Mr. Moore's removal.

While Mr. Moore and Mr. Pryor hold to the same Christian faith, they remain at odds on essential questions of duty and the rule of law. Both men can't be right. And in his speech, delivered to the Federalist Society of Harvard Law School, Mr. Pryor shows why Mr. Moore is wrong.

Mr. Moore criticized Mr. Pryor and other Alabama officials for failing to accept that they had a moral duty to acknowledge God that required them to join him in disobeying the injunction. Citing a number of New Testament texts, Mr. Pryor makes the theological argument that because God is sovereign and government exists by his will, "we have a moral obligation to obey the commands of our government" and that this duty, which is "for our protection and common good," isn't suspended "even when we believe its commands are unsound" — unless, of course, government should command a citizen to violate a Christian duty.

That didn't happen in the Ten Commandments case, says Mr. Pryor, who makes the obvious point that "Christ did not command us to maintain a monument of the Ten Commandments in the rotunda of the State Judicial Building."

The Times thus takes two dramatic incidents of a principled, devout public official taking political risks to enforce the rule of law — following his duty even when it required him to defy the heads of his state's executive and judicial branches — and turns those incidents topsy-turvy to suggest that he was trying to bend the law to fit a conservative social agenda.

One thing I'm reasonably sure of:   Bill Pryor has more dignity than to use the sort of terms that would most accurately and fitly apply to the New York Times writer who penned this smear. I'll swallow my own inclinations, and let the facts — the ones ignored by the Times — speak for themselves.

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Update (Fri Feb 20 @ 8:15pm):   Lest you think I overstated the risks Pryor took in following and upholding the rule of law:   Just yesterday, one day before the recess appointment, supporters of former Chief Justice Moore had called for President Bush to withdraw Pryor's nomination to the Eleventh Circuit altogether. Previously, they'd demanded Pryor's resignation as attorney general and even sued him in federal court over his role in Moore's removal from office. The Atlanta Journal-Constitution reports that Pryor "has found himself a marked man in his home state — threatened with death and needing security guards for himself and his family." Yet the liberal elites in the US Senate, lobbyist organizations, and press corps insist that the recess appointment was made by Dubya for partisan political reasons to solidify his far right-wing base. Now there's some irony you can cut with a chainsaw.

\*/Update (Fri Feb 20 @ 10:00pm):   I'm entirely unsurprised to see that as originally published, the NYT story was even more misleading, and was only later edited to refer to Pryor's "initial support" of Judge Moore. (Hattip to Kathryn Jean Lopez of NRO's The Corner.) An editorial in tomorrow's NYT — entitled, with unintentional irony, "Judicial Activism" — claims that "Judge Pryor has a narrow-minded judicial temperament and a ferocious attachment to an ideological agenda that puts him well to the right of the judicial mainstream." White-Noize and Southern Appeal blogger and Harvard law student Adam White also wrote an eloquent article earlier this week for NRO about Pryor's Federalist Society speech. And Southern Appeal also has a post about the same NYT article I've criticized here, along with links to other reactions to the Pryor appointment from the right and the left.

Update (Sat Feb 21 @ wee-small-hours):   I've been reading the transcript from the proceedings to remove Judge Moore from office, including Bill Pryor's cross-examination of Judge Moore and his final argument. I will tell you that I've never seen a better job of cross-examining a hostile, bloviating witness; Bill Pryor is a fine trial lawyer. But let me quote a bit from the official transcript (starting at page 149) of his closing argument so we can see whether the picture painted by the New York Times in its news and editorials about Bill Pryor is apt or whether it's spin:

The stakes here are high, because this case raises a fundamental question. What does it mean to have a government of laws and not of men? ....
....
Every one of these citizens, and thousands more who come before the courts, must know that the final orders of the courts will decide their disputes, even if that citizen disagrees with that order. Someone has to lose, and virtually always, the losing litigant thinks he was right and the court was wrong. This court must provide the answer that no citizen, whether rich or poor, powerful or weak, is above the law.

As I mentioned a moment ago, the judicial branch of our government, both our federal government and our state government, as human institutions, are imperfect. They sometimes make mistakes. Even terrible ones. We correct some of those mistakes on appeal. Sometimes the appeals court, even the Supreme Court gets it wrong, too. Fortunately, our Constitution gives us remedies.

I stand by my remarks from 1997 that we're called by God to do what is right. But we're called to exercise our constitutional rights in fulfilling his will.

We can elect lawmakers, legislatures, to change the law. We can elect presidents to appoint judges faithful to the law. We, the people, can even amend the Constitution itself. That is what our nation did when it abolished slavery with the 13th Amendment, which overruled the abominable decision of the Supreme Court in Dred Scott versus Sanford. But the refusal of a party to comply with a court order, whether the court order is right or wrong, is not a remedy provided by the Constitution.

Because Chief Justice Roy Moore, despite his special responsibility as the highest judicial officer of our state, placed himself above the law, by refusing to abide by a final injunction entered against him, and by urging the public through the news media to support him, and because he is totally unrepentant, this court regrettably must remove Roy Moore from the office of Chief Justice of Alabama. The rule of law upon which our freedom depends, whether a judge, a police officer, or a citizen, demands no less.

I rather doubt that Harvard law graduate Sen. Charles Schumer could have made this same argument any more eloquently.