Filibustered nominee speaks on Rule of Law, religion

BY ADINA LEVINE

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Reflecting on the recent controversy regarding the removal of a ten commandments monument outside the Alabama Supreme Court, Alabama Attorney General William Pryor spoke about his “Christian Duty and the Rule of Law” at an assembly hosted by the Federalist Society on February 6th.

In response to continuing criticism that compared Pryor’s enforcement of a federal court order to segregationists in the 1960s and proponents of slavery in the 1860s, Pryor unequivocally defended his position. “My moral duty was not in conflict with my legal duty,” Pryor asserted, drawing largely on remarks published recently in Samford University’s Cumberland Law Review.

Pryor was nominated by President Bush to a vacant seat on the U.S. Court of Appeals for the Eleventh Circuit. His nomination, along with that of three other current nominees, has been filibustered by Senate Democrats since last summer. (A fifth nominee, Miguel Estrada, withdrew his own nomination following a similar filibuster, and a sixth nominee, Charles Pickering, received a recess appointment last month.)

Critics led by Alabama Chief Justice Roy Moore have contended otherwise, claiming that the removal of the Ten Commandments violated a tenet of Christianity, and was in conflict with Pryor’s religious beliefs as a devout Catholic. When the United States District Court ordered the monument removed, Chief Justice Moore opposed the move and refused to enforce it. Pryor responded by ordering the removal of the monument, and suspended Moore for refusing to comply with the court order.

“I personally prosecuted Roy Moore for his clear violation of the canons of the judicial system,” Pryor stated. “It is wrong for anyone to place himself above the law. Judges have an obligation to uphold the law, especially when they disagree with it.”

The youngest Attorney General in the history of the United States, Pryor himself did not believe that posting the ten commandments represented a constitutional violation – and in that sense did not agree with the decision of the District Court – but believed that it was his legal duty to uphold the decision of the court.

“Since I view the ten commandment as the cornerstone of our legal system, I do not consider their display in a courthouse to necessarily be an establishment of religion,” asserted Pryor. “I have long defended the constitutionality of depicting the ten commandments on the walls of a courthouse. A copy hangs in my office.”

Nevertheless, Pryor said that the integrity of the legal system rests on the judge’s compliance irrespective of individual opinions.

“Our recent struggle in Alabama shows that judicial activism whether from the left or the right is destructive to our constitutional order,” he said.

The only exception to obeying local law, according to Pryor, would be in the event that the government prohibited a religious mandate, such as Peter’s right to preach or any other religious right. Since he believes that displaying the ten commandments does not represent a required exercise of religion, he argued that he can simultaneously maintain its voluntariness in addition to preserving its constitutionality. Pryor said that he has never encountered any clear-cut conflict, but if he did, “I would resign. That’s an easy one.”

In response to Moore’s attack comparing him to segregationists, Pryor asked:

“Was Chief Justice Moore the modern day Mr. King and I the modern day Mr. Bull Connor?”

To refute Moore’s argument, Pryor differentiated between the ultimate injustice of segregation – depriving citizens of their natural rights without allowing them any political recourse – and the Alabama case. The removal of the ten commandments from the courthouse did not deprive Christians of their natural rights, nor did it absolve them of any political recourse.

“If anything, the extensive freedom of the press evidenced the vitality of the rights of Christians,” said Pryor.

In addition to the substantive distinction from the 1960s civil rights activists, Pryor also criticized Moore for his procedural difference from Dr. King, who advocated defying the law with the full expectation of being prosecuted. Moore, however, was not prepared to resign his position.

“One who breaks an unjust law, must do so openly, knowingly, and willing to accept the penalty,” Pryor quoted King. Defying the law and embracing its punishment ultimately “expresses the highest respect for law.”

Finally, Moore accused Pryor of blindly following the law, in the sense that “if the rule of law means doing everything the judge says to do, we would still have slavery.” However, Pryor differentiated his actions, poiting out that President Lincoln’s response to the Dred Scott case, a Supreme Court decision he did not agree with, was to constantly challenge it through legitimate means, rather than openly defy it.

“Lincoln supported policies of government that challenged the continuous application of erroneous decision of Dred Scott,” asserted Pryor. “The defiance and rebellion of the southern states is not the example to follow.”

Above all, Pryor advocated working within the judicial rubric for decisions with which he did not agree to ensure the overall functioning of the governmental system.

“I am proud that in my state the system worked to preserve the rule of law,” said Pryor. “But I fear for my country that there will be additional Roy Moores so long as they perceive that other judges defy the law and get away with it. My decisions were not tough calls. My decisions were also not betrayals.”

Pryor’s speech was originally scheduled to be followed by comment from Professor Charles Fried, but Fried did not attend the event, due to a scheduling error.

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