The Independent Newsweekly
Issue Date: August 29, 2003
Pryor nomination puts religion to the test
By JOE FEUERHERD
There was no reason to believe, when President Bush nominated William Pryor to a seat on the federal appellate bench last April, that the debate over the conservative Alabama attorney general would result in Methodist and Mormon senators lecturing their Catholic colleagues on the finer points of Catholic doctrine.
It certainly didnt begin that way.
Initially, participants followed the all-too-familiar script. Bush promised that Pryor would be a judge who followed the law and wouldnt legislate from the bench. Conservative interest groups ginned up their direct mail machines and urged the faithful to contact their senators on Pryors behalf.
Liberal lobbies, meanwhile, called the nomination a sop to the Republican Partys socially conservative base and condemned Pryor as an extremist who could not be trusted to set aside his strongly worded views on abortion, gays and states rights when he put on the judges robe. Democrats threatened a filibuster -- their new weapon of choice in the ongoing judicial wars fought in the closely divided Senate.
Pryor, a Catholic, was the first to break form. Rather than soft-pedal his antiabortion views at his nomination hearing as other Bush nominees commonly do, he defended them. He stood by a comment -- he previously called Roe v. Wade the worst abomination of constitutional law in our history -- but said that his personal beliefs would not affect his ability to dispassionately apply the law.
Judiciary Committee Democrats pounced, and not only on abortion. Pryor was questioned and criticized for defending Alabamas treatment of prisoners (the Supreme Court ruled that handcuffing an uncooperative inmate to a post for hours without food or water was cruel and unusual punishment), for arguing that the Americans with Disabilities Act did not apply to state employees, and for supporting the recently overturned Texas anti-sodomy statute. He was questioned about a canceled family excursion to Disney World; it was gay day at the park and Pryor didnt want his children exposed to it.
Pryors record and rhetoric, Democrats charged, made a lifetime appointment to the federal bench too risky.
And then, a week before the Senate Judiciary Committee was to vote on the nomination, the rules of the nomination game really changed.
The conservative Committee for Justice, headed by Bush I White House Counsel C. Boyden Gray, and the Ave Maria List (a political action committee affiliated with Dominos Pizza founder Thomas Monahans Ave Maria Foundation) took out newspaper ads in Rhode Island and Maine, home to the potential swing votes of Sens. Susan Collins, Olympia Snowe and Lincoln Chafee.
The ads showed a door labeled Judicial Chambers covered by a sign reading Catholics need not apply. Said the ads: Some in the Senate are attacking Bill Pryor for having deeply held Catholic beliefs to prevent him from becoming a federal judge.
Back at the Judiciary Committee, senators reacted to the accusations in a heated discussion that featured non-Catholic Pryor supporters tutoring Catholic colleagues on the faith.
Methodist Jeff Sessions, R-Ala., told his colleagues that the doctrine that abortion is not justified for rape and incest is Catholic doctrine. He continued, Its the position of the pope, and its the position of the Catholic church. Are we saying that if you believe in that principle, you cant be a federal judge?
Sen. Richard Durbin, D-Ill., a Catholic opposed to the Pryor nomination, responded that many Catholics who oppose abortion personally do not believe the laws of the land should prohibit abortion for all others in extreme cases involving rape, incest and the life and health of the mother.
Pryor, said Durbin, supports the death penalty. Im not going to ask Senator Sessions to make a judgment as a Methodist whether that makes him a good Catholic or not, remarked Durbin.
Vermont Democrat Patrick Leahy, a Catholic, called the ads religious smears, while Utah Republican Orrin Hatch, a Mormon, said hes concerned we are reaching a point where a judicial nominee with deeply held religious views may be prevented from serving as a federal judge.
Over the course of the week that followed the debate spread. Dueling news conferences -- religious groups opposed to the Pryor nomination said the debate was about Pryors ideology, not his faith; groups supporting the nominee said it was bigotry, not ideology, that placed the Pryor nomination at risk.
Denver Archbishop Charles Chaput, writing in his archdiocesan newspaper, said the committee debate on Pryor turned ugly because Pryor believes that Catholic teaching about the sanctity of life is true; that the 1973 Supreme Court Roe v. Wade decision was a poorly reasoned mistake; and that abortion is wrong in all cases, even rape and incest.
Pryor was nominated, said Chaput, because he has served the state of Alabama with distinction, enforcing its laws and court decisions fairly and consistently.
Others saw less benign motives for the nomination.
Maybe President Bush thinks Bill Pryor will make other far-right judicial nominees look tame, said Ralph Neas, president of People for the American Way, a liberal interest group. Maybe he thinks any Supreme Court nominee will look good in comparison. Or maybe Pryor is this months political protection payment to satisfy the demands of the religious right political leaders and their allies who are constantly on guard for any signs of moderation.
Was the anti-Catholic accusation a McCarthyite tactic designed primarily to exact a political price from Democrats for their obstruction of Bush judicial nominees? Or do Senate Democrats have a different standard for pro-life Catholics than they do for observant Jews, devout Lutherans and practicing Presbyterians?
Pryor supporter Douglas W. Kmiec, the outgoing dean of Columbus School of Law at The Catholic University of America, said its more complicated than outright prejudice.
I dont think the Senate is rife with anti-Catholic bigotry, Kmiec told NCR, but I think the Senate is in danger of being misled into believing that an authentic Catholic cannot serve in judicial office by virtue of the consistent teaching of the church in favor of life.
There is a tendency, said Kmiec, to automatically view them [pro-life Catholic nominees] with suspicion because of two things. First, they are pro-life and, second, they have reached their pro-life position informed in part by their Catholic faith. There is the supposition that someone who is observant is incapable of performing judicial service.
William and Mary law professor Michael J. Gerhardt, author of The Federal Appointment Process: A Constitutional and Historical Analysis, disagrees.
I have hard time believing that any senator would in any way, shape or form hold against any nominee the fact that he is Catholic, said Gerhardt. This is not about his being Catholic. Its about where hes looking for guidance in deciding questions of law.
He continued, What it comes down to is whether Pryor can be believed when he says that those religious views, which so clearly inform his judgment will be left at the door when he is acting as a judge. In most cases, people are quite willing to take the nominees word. But in the case of someone who expresses [his] views strongly, then you cant be surprised when senators are either skeptical or want to probe the veracity of those statements.
Meanwhile, the Committee for Justice plans to take its case directly to Catholics with post-Labor Day advertisements in Our Sunday Visitor, the National Catholic Register and The Wanderer, the Capitol Hill newspaper Roll Call reported Aug. 18.
In an otherwise muddled and messy picture, one thing is evident: Pryor wont be getting the job. Senate Republicans fell seven votes short in their July 31 effort to end a Democratic filibuster.
Joe Feuerherd is NCR Washington correspondent. His e-mail address is email@example.com
National Catholic Reporter, August 29, 2003
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