Pryor restraint: gay Republicans and Republican jurisprudence
Without a debate on the nominees--as opposed to a debate on the Senate rules--America will not have the opportunity to fairly review the records of the President's nominees. Now that the logjam has been broken, let's talk about [William] Pryor's record, and why he is unfit for a lifetime appointment to the Bench.
Okay, let's talk.
The Boi joins Log Cabin Republicans in calling for the Senate to reject the confirmation of William Pryor to the U.S. Court of Appeals for the 11th Circuit. (By the way, Judge Pryor is already serving on that court; President Bush put him there by a recess appointment, which expires at the end of this year.)
In this newspaper ad, Log Cabin admonishes us that Judge Pryor is "unsuitable for lifetime service on the U.S. Court of Appeals." And why is that?
The short answer is that he's a judicial conservative. The long answer is that he reportedly described the U.S. Supreme Court's decision in Roe v. Wade as "the worst abomination of constitutional law in our history." Now I don't know whether Judge Pryor ever said that or not. But I hope he said it. After all, anyone appointed to serve on a federal appeals court should have a capacity for truth-telling.
If we want permissive abortion laws in our states, fine; we can speak to our state legislators. But when the highest court in a democracy uses a constitution that's silent on abortion as an excuse to substitute its policy views for those of the people's elected representatives, that's an abomination.
Log Cabin's other objection to William Pryor is that he does his work. As Alabama's attorney general, Judge Pryor filed a brief in support of Texas in Lawrence v. Texas, the case the U.S. Supreme Court used to overturn sodomy laws in the states where they still existed. But there's nothing unusual about a state attorney general filing an amicus brief in a case where the law of his own state is implicated. That's part of his job.
In that brief, Judge Pryor wrote:
[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 gays and lesbians find that statement offensive, it's because they don't like having their own conduct compared to other conduct that they, like most Americans, view as immoral. But Judge Pryor wasn't making a comparison; he was making a legal argument. As it is on abortion, the Federal Constitution is silent on homosexual conduct. If we argue that the Constitution nevertheless prevents the states from proscribing homosexual conduct, on what generally applicable principle of law are we relying?
Is privacy the principle? If so, what of prostitution that occurs in private? Is consent the principle? If so, what of an adult brother and sister who consent to get their freak on? Is harm the principle? If so, are the dead really harmed by a necrophilic act? Does the Supreme Court wish to announce a right to any of these behaviors? If not, why not? What's the principle?
As much as we might approve of the outcome in Lawrence, we'd be hard pressed to identity the logical limits of its holding. And that's what Judge Pryor was saying in his brief. He was arguing that the court could distinguish homosexual conduct from other forms of sexual conduct only by judicial fiat.
Of course, only by legislative fiat could a legislature decriminalize homosexual conduct while still prohibiting other sexual behaviors. But legislatures are supposed to make distinctions when writing public policy; that's what they do. Back when I worked for the audit division of the Texas comptroller's office, we once queried agency counsel about why the law exempted one item from the sales tax but not a second, similar item. The answer was succinct: "The Legislature may exempt from the sales tax any item it sees fit to exempt."
Courts, on the other hand, are supposed to follow generally applicable principles from one case to the next; that's how they bring coherence, predictability and fairness to the law. Which might lead us to wonder: on what principled basis would the Lawrence Court reject the constitutional claims of the incestuous? "Because we say so" is an appropriate answer from a distinction-drawing legislature; it's not appropriate from an equity-dispensing court.
Judge Pryor would not require the states to prohibit homosexual conduct or abortion; rather, he would leave them at liberty to decide for themselves public policy questions about which the Constitution is silent. This is known in the vernacular as democracy, and deference to it is a staple of Republican jurisprudence. But Log Cabin, which protests its fealty to Republican governance, describes Judge Pryor's respect for democratically-enacted law as a "pre-formed, inflexible ideal;" it seeks to bypass the people's elected representatives and have the courts produce outcomes with which the group agrees. Judge Pryor is, quite properly, unwilling to do that.
Log Cabin instructs us to "Call your Republican senator today" and express a view on William Pryor's confirmation.
Indeed I will.