William Pryor Takes Tortuous Path to Eleventh Circuit
His shocking testimony guarantees Democratic filibuster
William H. Pryor Jr. has been a conservative stalwart on the Eleventh Circuit for more than two decades and is now its chief judge. It’s easy to forget how difficult it was for him to get on the court in the first place—and how much he ultimately benefited from Senate Democrats’ efforts at obstruction.
Pryor took an unusually tortuous path to the Eleventh Circuit. In early 2001, he declined the opportunity to be nominated by George W. Bush to a seat on that court. Two years later, when that same seat still remained open, Bush nominated him to it, but Democrats filibustered his nomination. In an act of dubious constitutionality (in which I might well have played a role), Bush recess-appointed him to the seat in February 2004. In late May 2005, the Gang of 14 Agreement ensured that he would receive a floor vote on his nomination. Two weeks later, he was confirmed to a lifetime position by a narrow vote of 53 to 45.
There is a lot to cover here, so I’m going to address the first half in this post and the second half in my next post.
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Judicial-confirmation battles have their interesting ripple effects. In 1986, Ronald Reagan’s nomination of Jeff Sessions to a district-court seat in Alabama was defeated when the Senate Judiciary Committee, despite having a Republican majority, refused to advance that nomination to the Senate floor. Senator Howell Heflin of Alabama cast a decisive vote against Sessions. Ten years later, Sessions was serving as Alabama’s attorney general, and Bill Pryor was his deputy. When Heflin decided to retire, Sessions was elected to succeed him. In January 1997, Alabama’s governor Fob James appointed Pryor as attorney general. He was 34 years old.
In 1998, Pryor barely won election to a four-year term as attorney general, as he defeated his Democratic rival by 0.52% of the votes (fewer than 7,000). In that same election, Democratic candidate Don Siegelman defeated Fob James in the race for governor.
When George W. Bush became president in 2001, Pryor was at the top of the White House’s list for an Eleventh Circuit vacancy that had just arisen. But when a White House lawyer contacted Pryor about being nominated, he decided he had to pass. If he became a judge, Siegelman would appoint his successor as state attorney general. He would be pursuing personal gain to the detriment of his supporters who had worked so hard to elect him.
Bush ended up nominating William H. Steele to the Eleventh Circuit vacancy. But Democrats, having taken control of the Senate and escalated their obstruction, refused to give Steele a hearing. His nomination was returned to the White House when the Senate adjourned late in 2002.
Ironically, if Senate Democrats had adhered to past practice and simply confirmed Steele’s nomination, Bill Pryor would likely never have become Judge Pryor. The next Eleventh Circuit vacancy from Alabama did not arise until 2013. It was filled in 2017 by Kevin Newsom, who at age 44 was a full decade younger than Pryor.
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In the November 2002 elections, Republicans won narrow (51 to 49) control of the new Senate that would convene in January 2003. In Alabama, Pryor won re-election as attorney general with 59% of the vote, and Bob Riley, the Republican candidate for governor, eked out a victory over Siegelman (by barely 3,000 votes).
The White House regained interest in nominating Pryor for the Eleventh Circuit seat. Pryor might well have had doubts whether he would be confirmed. But he no longer had qualms that his departure from his elected office would have damaging legal consequences, as Riley would select his successor.
In early January 2003, Bush nominated Steele to a district judgeship in Alabama. When word spread that Pryor would be nominated to the Eleventh Circuit seat, civil-right leaders in Alabama responded favorably. As a state senator who was also president of the Alabama chapter of the Southern Christian Leadership Conference put it: “I think Bill is a fair man. He’s always been very receptive and worked with me when I asked him to.”
But when Bush nominated Pryor in April 2003, the opposition from liberal interest groups in D.C. was intense. Alliance for Justice, for example, condemned him as “an ultra-conservative activist” who “has taken controversial positions on enough issues to offend nearly every constituency.” High among his positions that the Left regarded as intolerable: he had condemned Roe v. Wade as “the worst abomination in the history of constitutional law.”
Pryor’s nomination took place in the shadow of Senate Democrats’ extraordinary decision in March 2003 to launch a filibuster against D.C. Circuit nominee Miguel Estrada. At Pryor’s confirmation hearing, senators expected him to dance around his views on Roe. Instead, he shocked them with his candor. When Chuck Schumer, Democrat from New York, asked Pryor whether “as of right now” he believed that Roe was “the worst abomination in the history of constitutional law,” Pryor simply responded, “I do.”
Pryor knew that he needed the vote of Republican senator Arlen Specter, who was deeply committed to Roe, in order for his nomination to be reported to the Senate floor. But when Specter asked him whether “you wish you had not made” that statement about Roe, Pryor replied: “No, I stand by that comment.” Specter then asked him why he regarded Roe as an “abomination.” Pryor answered:
Well, I believe that not only is the case unsupported by the text and structure of the Constitution, but it has led to a morally wrong result. It has led to the slaughter of millions of innocent unborn children.
On July 31, 2003, Pryor became the third of Bush’s appellate nominees to lose a cloture vote on his nomination: he received only 53 of the 60 votes he needed. On a second cloture vote in November, he received only 51 votes.
Senate Democrats might well have been able to defeat Pryor’s nomination in a straight up-or-down vote. He was at serious risk of losing four Republican votes—he could, in other words, count on only 47 votes from Republican senators—and he could reasonably expect at most two Democratic votes (from Zell Miller of Georgia and Ben Nelson of Nebraska, both of whom voted for cloture).
But it would have taken a lot of work for Democrats to be certain that they had the votes to defeat Pryor. Moreover, having committed to filibuster the Estrada nomination even though they had no case against him, they may well have concluded that they had to filibuster Pryor. To allow a floor vote on Pryor would make obvious that they were filibustering Estrada only because they feared that, once confirmed, he would be well positioned to become the first Hispanic Supreme Court justice.
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As 2003 came to an end, there was no realistic prospect that Pryor’s nomination would be confirmed in 2004.
In my next post, I will discuss President Bush’s recess appointment of Pryor and the important role that Pryor’s strong stance against Roe played in his ultimate confirmation to a lifetime position on the Eleventh Circuit.