Groups Aim To Torpedo President’s Judge Pick

Pryor Opposed On Church-State

By Ori Nir

Published May 16, 2003, issue of May 16, 2003.
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WASHINGTON — With congressional battles heating up over President Bush’s judicial nominees, two major Jewish organizations known for their liberal views have weighed in against the latest controversial Bush candidate, Alabama state Attorney General Bill Pryor.

Pryor was nominated last month to the 11th Circuit Court of Appeals in Atlanta. The two groups, the National Council of Jewish Women and the Religious Action Center of Reform Judaism, said they would oppose the nomination because of Pryor’s contentious positions on a wide array of issues, including separation of church and state, reproductive rights and gay rights.

“He’s a very troubling nominee, particularly troubling, because he’s got views that are antithetical to the vast majority of the Jewish community on what is for us our gut issue, church-state separation,” said Mark Pelavin, associate director of the Religious Action Center. “This is a guy who’s been an activist, who’s gone out of his way to advance his views. We’re talking about someone with a fundamentally different view of the relationship between government and religion playing an aggressive role in advancing his views.”

Bush’s judicial nominations have become a major battle line for civil-liberties, civil-rights and women’s-rights groups, which claim the administration is trying to pack the federal judiciary with conservative ideologues. The Jewish women’s council and the Reform movement’s Washington lobbying arm are the only major Jewish organizations to have lined up with the liberals on the issue.

Pryor is the third Bush judicial nominee to be opposed by the Religious Action Center since last December, when its parent body, the Union of American Hebrew Congregations, decided to get involved in judicial nominations for the first time in more than a decade.

The Reform center first spoke out in January against the nomination of Judge Charles Pickering of Mississippi. Two weeks ago it spoke out against the nomination of Judge Priscilla Owen of Texas. Both have been nominated to the 5th U.S. Circuit Court of Appeals in New Orleans.

Pickering was rejected last year by the Democratic-led Senate, mainly because of his views on race relations. He was renominated by Bush in January, following the Republican takeover of the Senate.

Owen is one of two nominees — together with Miguel Estrada — whose confirmation vote is being held up in the Senate by a Democratic filibuster. Democrats oppose Owen mainly because of her views on abortion and workers’ rights. The filibuster has infuriated Senate Republicans, who are said to be investigating the possibility of suing the Democrats in court.

But while past nominations have engendered bitterness on both sides, Pryor’s case is described by activists on both sides as different. Opponents say he has consistently used his position as a state attorney general, not bound by the ethics of the bench, to advance his conservative ideology. Conservatives say his views are being misrepresented.

In Alabama, Pryor has led efforts to ban so-called partial-birth abortions, challenged sections of the Voting Rights Act and led the defense of Judge Roy Moore, the state chief justice who stirred a constitutional hornets’ nest in 1995 by hanging a plaque of the Ten Commandments in the state judicial building. Moore has also suggested that the September 11 terrorist attacks may have been a consequence of Americans turning their backs on God.

Pryor’s opposition to Section 5 of the Voting Rights Act, which requires federal approval for changes by states in their voting procedures — he called it “an affront to federalism” in 1997 congressional testimony — was cited in a petition submitted to the Senate last week by a group of 16 civil rights leaders, including Martin Luther King III, urging his rejection. His views, the activists wrote, “cause us to conclude he is unsuited for the federal bench. If he cannot comprehend the continuing need for voting rights protections for African-Americans in the Deep South, then he is unlikely to fairly evaluate and firmly enforce the provisions of the Voting Rights Act in cases that come before him.”

More recently, Pryor alienated gay activists by co-authoring a friend-of-the-court brief supporting the Texas statute that criminalizes homosexual acts. In his brief, co-signed by the attorneys general of Utah and South Carolina, Pryor wrote that 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’).”

The brief was submitted two months before Republican Senator Rick Santorum of Pennsylvania caused a national uproar with a similar statement.

Pryor has also alienated women’s rights organizations through his vocal opposition to Roe v. Wade, the 1973 Supreme Court ruling that legalized abortion, which he has called “the worst abomination of constitutional law in our history.”

Both Pelavin of the Reform center and Sammie Moshenberg, Washington operations director of the National Council of Jewish Women, predicted that Pryor would likely join Owen and Estrada as objects of a Democratic filibuster.

Pryor’s candidacy, however, will muster strong support. Like other Bush judicial nominees, the 41-year-old Alabaman is a member of the Federalist Society, an influential conservative legal organization that sees states’ rights as a key to preserving individual freedoms. Through the society he has the support of a strong network of conservative and libertarian jurists. Society members include the chairman of the Senate Judiciary Committee, Republican Orrin Hatch of Utah, as well as Attorney General John Ashcroft and White House Counsel Alberto Gonzales. Pryor also enjoys strong backing from Alabama Republican Senator Jeff Sessions, a key member of the judiciary committee, who preceded him as Alabama attorney general.

Moreover, Pryor enjoys considerable popularity at home in Alabama. Even political opponents describe him as fair, professionally capable and committed to the rule of law. Several African-American liberals in the state are backing his nomination, a fact his supporters frequently highlight.

“Pryor really is not the kind of extremist that the other side is trying to make of him,” said John Nowacki, legal policy director of the Free Congress Foundation, a conservative advocacy group. “Just like Pickering and Owen, his record is being deliberately misrepresented.” He described Pryor as a pragmatic coalition-builder who seeks the middle ground.

“I have a problem with people like Schumer defining the ‘mainstream,’” Nowacki said, referring to Democratic Senator Charles Schumer from New York. “Why should anyone accept the definition of a New York liberal, who is far from being objective?” Pryor, he said, is a worthy nominee who faces “knee-jerk” opposition from people unfamiliar with his record.

Democratic congressional staffers say it’s too early to tell how strongly Pryor will be opposed by the Senate minority. Such decisions depend on variables that typically become clear only after a nominee has testified before the judiciary committee.

At this point, Democrats note, only two Bush nominees, Owen and Estrada, are being held up by filibuster, despite GOP accusations of wholesale Democratic obstructionism. In fact, a comparison of Senate judicial confirmations during the Bush and Clinton presidencies shows that the two presidents enjoyed almost identical success rates, although Bush made many more nominations. In the first 27 months of the Bush presidency, ending May 9, 2003, Bush made 184 nominations and 124 of them were confirmed, for an overall success rate of 67%. By comparison, in the first 27 months of Clinton’s second term, ending May 9, 1999, Clinton made 147 nominations of which 101, or 69%, were confirmed.

In terms of volume, the confirmation rate under Bush, averaging six per month, is 50% higher than at any other time during the past 20 years, under the reign of three different presidents.

Senate Democratic staffers say they do not try aggressively to block every troubling nominee, and use the filibuster tool only sparingly. Some observers speculate that Democrats are saving the filibuster to block nominees who they see as likely Bush nominees for a Supreme Court vacancy. Estrada and Owen are considered likely candidates because they represent minority groups. Pryor does not fit the definition.

The National Council of Jewish Women decided last year to oppose any candidate who is anti-abortion and has recently been “going gangbusters, with the nominees coming fast and furious,” in the words of NCJW’s Moshenberg. The Reform action center has adopted a more cautious approach, opposing nominees who hold very strong positions on issues of particular concern, especially church-state relations, Pelavin said.

Representatives for both organizations said they would like other major Jewish organizations to join them. That, however, is not likely to happen, said Marc Stern, assistant executive director of the American Jewish Congress. The AJCongress and American Jewish Committee, as well as the Anti-Defamation League, United Jewish Communities and the Orthodox Union, all decided years ago to stay out of judicial nomination debates. The reason most frequently stated is the seeming politicization of the process in recent years.

The Reform movement, by contrast, decided to enter the nomination fray largely because of the sharpening of the debate.

“You can say it’s too politicized and we’re staying out of it,” Pelavin said, “or you can say exactly the opposite: that because it has become politicized and the administration is putting forward nominees to advance a political agenda, we have an obligation to get more involved. That because so many of the issues that we care most about are being decided in these discussions and debates, that we should be at the table and be involved. I think this is a time when our community needs to raise its voice.”






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