Firebrand

Donald Trump’s Supreme Court Pick Would Kill the ‘Right to Remain Silent’ Warning

Lost in the “Second Amendment people” controversy was Trump’s point about Supreme Court justices. The one he wants is truly radical.

Lost in the furor surrounding Donald Trump’s remark that “Second Amendment people” might be able to do something about Hillary Clinton was the ad-lib’s context: Trump was talking about appointing judges and justices.

Just a few sentences after the “Second Amendment” remark, Trump boasted, “we have such great Justices, you saw my list of 11 that have been vetted and respected.” At the top of the list—prepared not by Trump but by the Heritage Foundation, the conservative-to-libertarian think tank funded by the Coors family, the Koch Brothers, the Bradley Foundation, the Scaife Foundation, and the Olin Foundation, some of the same funders who have blocked the nomination of Judge Merrick Garland—is Judge William Pryor of the Eleventh Circuit Court of Appeals.

Now, Bill Pryor is, by all accounts, a distinguished and ethical jurist. Born in 1962, he has had a brilliant career, serving as Alabama’s youngest attorney general from 1997-2003 before being nominated by President George W. Bush to a federal appeals court.

During Pryor’s confirmation hearings, though, he emerged as a fierce ideologue, particularly on the issue of abortion. Pryor was the polar opposite of Judge Merrick Garland, President Obama’s Supreme Court nominee who is widely praised as a circumspect centrist. Pryor didn’t back off from his past remark that Roe v. Wade was “the worst abomination in the history of constitutional law.” Nor did he disavow his shocking statement that “I will never forget Jan. 22, 1973, the day seven members of our highest court ripped the Constitution and ripped out the life of millions of unborn children.”

On the contrary, when pressed to explain such statements, Pryor doubled down, saying that Roe “has led to the slaughter of millions of innocent unborn children” and created “out of thin air a constitutional right to murder an unborn child.”

“I believe that abortion is the taking of human life,” he said in response to a question from Senator Orrin Hatch. “I believe that abortion is morally wrong.”

Of course, Pryor, who is Catholic is entitled to hold any moral beliefs he wants. Hillary Clinton’s choice for vice president, Tim Kaine, for example, is personally pro-life. Yet while Pryor told Hatch that “I am able to put aside personal beliefs and follow the law, even when I strongly disagree with it,” he clearly was not able to do so even in the context of the confirmation hearing, in which he disregarded the careful “substantive due process” reasoning of Roe and the legal conclusion that embryos, blastocysts, and fetuses before viability are not legally “children,” despite some religious teachings to the contrary.

The National Review called the hearings “one of the most extraordinary Judiciary Committee sessions in recent memory.”

Following the hearings, Democrats filibustered Pryor’s nomination until Republicans threatened the “nuclear option” of eliminating the filibuster altogether.

Pryor is also (in-)famous for a 2000 speech he gave (to the Heritage Foundation, incidentally) in which he called Miranda v. Arizona one of the two “worst examples of judicial activism.” (The other, of course, was Roe.) If you’ve ever watched a cop series on TV, you know Miranda—that’s the case that required police to tell arrestees “you have the right to remain silent.”

In Pryor’s world, those warnings wouldn’t exist.

Then there’s the time in 2002 Pryor argued before the Supreme Court that cuffing a prisoner to a hitching post in the hot Alabama sun, with his hands tied over his head, was not “cruel and unusual punishment.” The Court disagreed, noting “obvious cruelty inherent in the practice.”

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Now, Pryor is not some caricature. Indeed, Pryor once irritated conservatives for supporting the removal of Alabama Chief Justice Roy Moore over Moore’s open defiance of a federal court order to remove a blatantly unconstitutional sculpture of the ten commandments from the front yard of the state’s judicial building. At the time, Pryor said that Moore had “flagrantly disobeyed the law, incited the public to support his misconduct and undermined the integrity, independence, and impartiality of the judiciary.” (Moore did the same thing this year, ordering clerks not to issue marriage licenses to same-sex couples).

Pryor’s record on racial issues is more complex. Prior to his confirmation, he supported several African American causes in Alabama, siding with the NAACP on redistricting issues, prosecuting the perpetrators of the 1963 Birmingham church bombing, and working to eliminate racial disparities in criminal sentences.

But Pryor also urged Congress to repeal Section 5 of the Voting Right Act way back in 1997, fully 16 years before the Supreme Court said it had outlived its usefulness because there was no more racial discrimination. And since becoming a judge, Pryor wrote the opinion upholding Georgia’s voter ID law, and, with one other judge, voided an antidiscrimination claim by saying that a supervisor calling a black employee “boy” was not evidence of racism.

In an odd way, Pryor isn’t so different from his new number one fan, though he’s certainly far more intelligent. Both are outspoken, using hyperbolic language when discretion might be better advised. Both seem relatively uninterested in the suffering of others. And both, if Americans care to pay attention, might raise the profile of the Supreme Court as a crucial issue in presidential elections. In this way, perhaps in this way alone, both might be doing a service to our democracy.