Alliance for Justice Report in Opposition to the Nomination of William H. Pryor to the
United States Court of Appeals for the Eleventh Circuit
Introduction
Alabama Attorney General Bill Pryor, nominated by President Bush to the U.S. Court of
Appeals for the Eleventh Circuit, is an ultra-conservative activist whose record disqualifies him
from a lifetime appointment to the federal judiciary. Throughout his career, Pryor has taken
controversial positions on enough issues to offend nearly every constituency. Even the
Washington Post, which has supported many of President Bush’s most controversial nominees,
has declared Pryor “Unfit to Judge.”1 The Senate should reject his nomination.
Pryor has been one of the architects of the “states’ rights” movement, affirmatively
choosing to thrust himself—and the state of Alabama—into nearly every effort to limit
Congressional authority and undermine federal civil rights and environmental protections. Not
satisfied with the sweeping federalism rulings of the Rehnquist Court, Pryor continues to push
relentlessly to strip the federal government of power to deal with pressing societal problems.
The lengths to which Pryor is willing to go to advance this agenda were dramatically evident in
his efforts to dismantle a consent decree that required the state to provide more services to at-risk
children. Pryor’s statement defending this action boldly revealed his political priorities: “My job
is to make sure the state of Alabama isn’t run by a federal court. My job isn’t to come here and
help children.”
Pryor has a disturbing record of hostility toward the rights of women and minorities. He
has been a relentless opponent of a woman’s constitutional right to reproductive choice, calling
Roe v. Wade “the worst abomination of constitutional law in our history.” He has also fought
strenuously against legal protections for gays and lesbians, in one case comparing homosexuality
to necrophilia and bestiality. With regard to discrimination against racial and ethnic minorities,
Pryor has defended criminal ordinances that disproportionately target minority youth and has
called for the repeal of a key provision of the Voting Rights Act .
Pryor has a blatant record of opposition to environmental protections and has challenged
the constitutionality of significant portions of the Clean Water Act, the Endangered Species Act,
and the Clean Air Act. He has also demonstrated a lack of respect for the constitutional wall
separating church and state, vocally defending Chief Justice Roy Moore’s display of the Ten
Commandments in the rotunda of the Alabama Supreme Court.
1
“Unfit to Judge,” WASHINGTON POST, April 11, 2003.
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Pryor’s vigorous advocacy for the death penalty, aggressive defense of correctional
officers who employed abusive practices in disciplining prisoners, and zealous efforts to weaken
the constitutionally guaranteed rights of the accused suggest a fundamental disregard for
principles of fairness and equal justice for all. Pryor’s personal and professional support for gun
owners strongly suggests that he would be incapable, if confirmed, of impartially presiding over
matters involving the regulation of the use and possession of firearms.
Pryor is an extremist ideologue with a temperament unfit for the bench. He went to law
school to fight the ACLU—which he calls the “anti-American Civil Liberties Union”—and
became a leader of the right-wing Federalist Society. He has used his position as Alabama
Attorney General to pursue his own ideological agenda, leading him repeatedly to involve the
state in controversies in which it has no real interest, such as Bush v. Gore. Pryor’s frequent
outrageous and intemperate remarks concerning judicial rulings with which he disagrees confirm
that he could not be fair and impartial on the bench.
Moreover, Pryor’s political activism and ideological extremism have pushed him into a
number of ethically troubling actions. Pryor was one of the founders of the Republican
Attorneys General Association (RAGA), an organization that has raised money for the election
of Republican attorneys general from corporations that may have been the subjects of suits or
investigations by their offices, but Pryor steadfastly refuses to identify RAGA’s donors. Pryor
may also have leaked confidential strategy memoranda to the tobacco company defendants in the
states’ lawsuit to recover Medicaid money spent treating smoking-related illness.
The Alliance for Justice strongly opposes William Pryor’s confirmation.
Brief Biography
William Pryor is only forty-one years old, born on April 26, 1962 in Mobile, Alabama.
He received his undergraduate degree magna cum laude in 1984 from Northeast Louisiana
University, and his law degree magna cum laude in 1987 from the Tulane University School of
Law. Following law school, he clerked for Fifth Circuit Judge John Minor Wisdom. From 1988
through 1995, he worked as an associate in private practice in Birmingham, Alabama, first with
the firm of Cabaniss, Johnston, Gardner, Dumas & O’Neal, and then with the firm of Walston,
Stabler, Wells, Anderson & Bains. From 1991 through 1995, he also taught as an adjunct
professor at the Cumberland School of Law at Alabama’s Samford University. He left private
practice in 1995 to serve as Deputy Attorney General in the constitutional and civil litigation
section under then-Alabama Attorney General Jeff Sessions. When Sessions was elected to the
U.S. Senate in 1997, Governor Fob James appointed Pryor to complete Sessions’ term.2 In 1998,
Pryor was elected to a full-four year term as Alabama’s Attorney General, and he was re-elected
in 2002. On April 9, 2003, President George W. Bush nominated him for a seat on the Eleventh
Circuit.
2
James is perhaps best known for threatening to deploy the Alabama National Guard to make sure that no one
removed the Ten Commandments tablets from the courtroom of Alabama Supreme Court Chief Justice Roy Moore.
Matt Labash, “God and Man in Alabama,” THE WEEKLY STANDARD, March 2, 1998 at Pg. 19.
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The Eleventh Circuit
Pryor has been nominated to a predominately conservative court that is currently made up
of six Republican and five Democratic appointees. His confirmation would move the Eleventh
Circuit further to the right, and add another white male to a court that has only two minority
judges (one African-American and one Hispanic) representing the large minority populations of
the states covered by the court – Georgia, Florida, and Alabama.
Affiliation with Right-Wing Groups
Pryor said that he chose Tulane University law school in part because “they didn’t have
any wild-eyed leftist student organizations.”3 After discovering the existence of a liberal law
students’ group, Pryor responded by founding a student chapter of the right-wing Federalist
Society, an organization for whom he currently serves as Chairman-Elect of the Federalism and
Separation of Powers Practice Group.4 Pryor also sits on the Legal Policy Advisory Board of the
Washington Legal Foundation, which has spearheaded lawsuits to undermine the Voting Rights
Act, affirmative action efforts, and environmental protection laws.5 He has spoken frequently
before numerous ideologically conservative groups, such as the Heritage Foundation, the
American Enterprise Institute, the Christian Coalition, the National Rifle Association, the Cato
Institute, and the Federalist Society.6
PRYOR’S RECORD
States’ Rights
Since he became Alabama’s Attorney General in 1997, Pryor has taken steps to ensure
that Alabama has been at the center of the “states’ rights” movement, participating as a party or
an amicus curiae in virtually every significant “states’ rights” case before the Supreme Court. In
these cases, Pryor was not simply “doing his job” as Alabama’s elected Attorney General.
Rather, taking full advantage of the Alabama Attorney General’s absolute authority to decide
cases to pursue,7 he was using the resources of Alabama to promote, as he said, “a subject that is
near and dear to my heart: federalism.”8 Pryor hired fellow states’ rights advocate Jeffrey
Kelly Greene, “Bill Pryor Hopes to Ride Court Crusade to the Top,” WALL STREET JOURNAL, May 21, 1997.
Id; see also Pryor’s website at http://www.ago.state.al.us.
5
Doug Ireland, “Abraham on the Altar,” THE NATION, March 6, 2000; see also http://www.ago.state.al.us.
6
See http://www.ago.state.al.us.
7
In Alabama, “[a]ll litigation concerning the interest of the state, or any department of the state, shall be under the
direction and control of the Attorney General.” Ala. Code § 36-15-21 (1999). Attorneys General have broad
powers to protect the interests of the people, see e.g. State of Florida ex rel Shevin v. Exxon Corp., 526 F.2d 266,
268 (5th Cir. 1976) and Alabama’s Attorney General has “wide discretion in determining what actions he should take
in protecting what he conceives to be the best interests of the State of Alabama and the citizens thereof.” Mobile Oil
Corp. v. Kelly, 353 F.Supp. 582, 586 (S.D. Ala. 1973).
8
Kelly Greene, “Bill Pryor Hopes to Ride Court Crusade to the Top,” WALL STREET JOURNAL, May 21, 1997.
3
4
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Sutton9 to represent the state of Alabama in a number of the most significant federalism cases in
recent years.10
In case after case, Pryor – often without the assistance of other state attorneys general –
pushed the Supreme Court to adopt new limits on federal authority. Under Pryor’s leadership,
Alabama was the only state to challenge the constitutionality of provisions of the Violence
Against Women Act (United States v. Morrison).11 Pryor also argued in briefs that the Supreme
Court should cut back on the protections of the Age Discrimination in Employment Act, the
Civil Rights Act of 1964, the Americans with Disabilities Act, the Family and Medical Leave
Act, and the Clean Water Act (Kimel v. Florida Board of Regents; Alexander v. Sandoval;
Garrett v. Board of Trustees; Department of Human Resources v. Hibbs;12 SWANCC v. U.S.
Army Corps of Engineers).
The conservative Weekly Standard named Pryor one of five true “champions” of states’
rights. Richard Cohen, an attorney with the Alabama-based Southern Poverty Law Center, said
of Pryor: “Bill has been an architect of the federalist revolution in this country. That is surely
what has brought him to the attention of prominent figures in the [Bush] administration. But it’s
not a surprise that it is also what brought him to the attention of the people who believe it is the
extension of federal power that has assured equal rights in this country.”14
13
Pryor has not been satisfied with the “states’ rights” revolution brought about by the
recent decisions of the Supreme Court’s conservative five-justice majority. In case after case he
has pressed the Court to take even more extreme steps to limit congressional power. In
SWANCC v. U.S. Army Corps of Engineers, Pryor argued that provisions of the Clean Water
Act exceeded congressional authority under the Commerce Clause and that federal statutes
regulating state entities should have no presumption of constitutionality. In Hibbs v. Nevada
Department of Human Resources, Pryor asserted that states could not be sued for damages when
they refused to allow state employees to take unpaid leave to care for a sick relative pursuant to
the Family and Medical Leave Act (FMLA). And, in Jinks v. Richland County, he argued that
9
Sutton was recently confirmed to a seat on the 6th Circuit after a bitter battle in the U.S. Senate. When questioned
about his role in some of the most devastating 5-4 Supreme Court decisions striking down critical federal
protections, Sutton argued to Senate Judiciary Committee members that he had no independent view of how these
cases should be decided and was merely carrying out the wish of his client, i.e., Bill Pryor.
10
Pryor hired Sutton to represent Alabama as amicus curiae in Kimel v. Florida Board of Regents, 526 U.S. 62
(2000), U.S. v. Morrison, 529 U.S. 498 (2000), Board of Trustees of the University of Alabama v. Garrett, 531 U.S.
356 (2001) (as a party), Alexander v. Sandoval, 532 U.S. 275 (2001), and Solid Waste Agency of Northern Cook
County (SWANCC) v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001).
11
Bill Pryor, “The Supreme Court as Guardian of Federalism,” Remarks at event entitled “Federalism: The Quiet
Revolution,” sponsored by the Federalist Society and the Heritage Foundation in Washington, D.C., July 11, 2000;
see Brief of Alabama as Amici Curiae in Support of Respondent, 1999 U.S. Briefs 5. Indeed, the attorneys general
of thirty-six states appeared as amici curiae on the other side to defend the constitutionality of VAWA. See Brief of
the States as Amici Curiae in Support of the Petitioner’s Brief on the Merits, 1999 U.S. Briefs 5.
12
Not only did Pryor participate in the drafting of the states’ brief in Hibbs, but he also unsuccessfully petitioned the
court for leave to participate in oral argument. See LEXSEE 2002 U.S. LEXIS 9254.
13
Michael S. Greve, “A Federalism Worth Fighting For,” THE WEEKLY STANDARD, Jan. 29, 2001.
14
Jeffrey McMurray, “Groups to Fight Pryor’s Appeals Court Nomination—But How Hard?,” AP, April 26, 2003.
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Congress even lacked authority to toll state statutes of limitations during the pendency of federal
court actions. The Supreme Court refused to accept any of these propositions. Indeed, the 6-3
decision in Hibbs upholding a state employee’s FMLA claim against Nevada as a valid exercise
of congressional power to prohibit gender discrimination under the Fourteenth Amendment was
written by conservative Chief Justice Rehnquist, who found a long history of “state laws limiting
women’s employment opportunities,”15 and the decision rejecting Pryor’s “state sovereignty”
argument in Jinks was unanimous, and authored by Justice Antonin Scalia, the Supreme Court’s
most pro-states’ rights member.16
Pryor continues to look for new avenues to pursue his “states’ rights” agenda. In recent
speeches and articles he has questioned the constitutionality of suits for money damages against
state governments under the Equal Pay Act, argued for limits on congressional authority pursuant
to the Spending Clause, called upon the courts to restrict congressional power to prohibit state
actions that have a discriminatory impact but no discriminatory animus, and asserted that the
courts should place new restrictions on actions for injunctive relief against state officers to
enforce federal law.17 If confirmed, he can be expected to carry this fervent advocacy for
“states’ rights” with him to the bench.
Civil Rights
Women’s Rights
Throughout his career, Pryor has been publicly critical of the Supreme Court’s
recognition of a constitutional right to reproductive choice. Speaking at a 1997 rally, Pryor said:
“I will never forget January 22, 1973, the day seven members of our highest court ripped the
Constitution and ripped out the life of millions of unborn children.”18 Later that same year,
Pryor criticized the Supreme Court’s ruling in Planned Parenthood v. Casey for “preserv[ing]
the worst abomination of constitutional law in our history: Roe v. Wade.”19 In another speech, he
said that Supreme Court decisions affirming reproductive choice for women (Roe) and rights for
the accused (Miranda) have been “the worst examples of judicial activism.”20 After the Court
struck down Nebraska’s ban on “partial birth abortion,”21 Pryor stated that he personally agreed
with Justice Scalia’s dissent that “the Constitution says nothing about a right to abortion.”22
See Nevada Dep’t of Human Resources v. Hibbs, No. 01-1368, 2003 U.S. LEXIS 4272, at *15 (May 27, 2003).
Jinks v. Richland County, 2003 U.S. LEXIS 3241(April 22, 2003).
17
See, e.g., Bill Pryor, The Demand for Clarity: Federalism, Statutory Construction, and the 2000 Term, 32 CUMB.
L. REV. 361 (2001); “Fighting for Federalism,” speech before the Atlanta Lawyers’ Chapter of the Federalist
Society, March 28, 2001; “The Future of Federalism,” speech before the National Lawyers Convention of the
Federalist Society, Nov. 18, 2000.
18
Kelly Greene, “Bill Pryor Hopes to Ride Court Crusade to the Top,” WALL STREET JOURNAL, May 21, 1997.
19
Bill Pryor, “Federalism and the Court: Do Not Uncork the Champagne Yet,” Remarks before the National
Federalist Society, Washington, D.C., Oct. 16, 1997.
20
Bill Pryor, “The Supreme Court as Guardian of Federalism,” Remarks at event entitled “Federalism: The Quiet
Revolution,” sponsored by the Federalist Society and the Heritage Foundation in Washington, D.C., July 11, 2000.
21
See Stenberg v. Carhart, 530 U.S. 914 (2000).
22
Ashley Estes, “AG: State Partial-Birth Abortion Law May Require Change,” AP, June 30, 2000.
15
16
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Pryor’s views on choice have not changed, as demonstrated by his response to a 2002
NARAL Pro-Choice America Survey of Attorneys General: “Abortion is murder, and Roe v.
Wade is an abominable decision.”23 He went on to express his opposition to abortion even in
cases of rape or incest, supporting only a narrow exception for instances in which a pregnant
woman’s life is endangered.24
As Alabama’s Attorney General, Pryor has supported legislative and judicial efforts to
undermine reproductive freedom. In 1999, he endorsed an Alabama bill that would have
permitted a judge to appoint a guardian ad litem for the fetus of any underage woman seeking an
abortion.25 Pryor also successfully defended against a challenge in federal court to an Alabama
law requiring physicians to talk with women about the risks of abortion and alternatives at least
24 hours before performing the procedure.26 He also worked to undercut the right to
reproductive choice on a national level by joining an anti-choice amicus brief to the Supreme
Court, defending state laws that banned so-called “partial birth abortions,” in Stenberg v.
Carhart.27
Pryor has also publicly expressed skepticism about the need for legal protections that
guarantee gender equality. After the Supreme Court ruled that the U.S. Constitution required the
previously all-male Virginia Military Institute to admit women, Pryor said: “Never mind the fact
that the people of the United States did not ratify the Equal Rights Amendment. We now have
new rules of political correctness for decision-making in the equal protection arena.”28
Pryor’s comments have also revealed an insensitivity to the barriers that victims of
domestic violence face in the criminal justice system.29 When protesting a provision of the
Violence Against Women Act that allowed victims of gender-motivated violence to sue their
attackers in federal court, Pryor commented: “The continuing existence of violence in our society
is hardly proof of bias against its victims. In fact, statistics show that any bias that does exist
runs in favor of – not against – women. For example, in cases of unprovoked murders of
spouses, male prison sentences average more than twice as long as those for women.”30
23
NARAL Pro-Choice America/NARAL Pro-Choice America Foundation, Who Decides: A State by State Review of
Reproductive Rights, 12th Ed., Jan. 2003, Pg. 1.
24
Id.
25
Amy Bach, “No Choice for Teens,” THE NATION, Oct. 11, 1999, No. 11., Vol. 269, at Pg. 7.
26
Bob Johnson, “Judge Allows Abortion Information Act to Take Effect Oct. 14,” AP, Sept. 30, 2002.
27
Brief for the States as Amici Curiae in Support of Petitioners, Stenberg v. Carhart, 1999 U.S. Briefs 830.
28
Ann Lewis, “Week in Review,” Women’s Vote Center News, April 25, 2003.
29
Pryor did, however, fund an Alabama domestic violence prevention program with the proceeds of a multi-state
settlement with Nine West. Alan Greenblatt, “The Avengers General,” GOVERNING MAGAZINE, May 2003 at
pg. 52.
30
Bill Pryor, “Battling Violence Against Women: States, Not Feds, Should Lead in Protection Efforts,”
WASHINGTON TIMES, Jan. 11, 2000. In another action revealing an insensitivity to domestic violence, Pryor
filed an amicus brief seeking to overturn a Texas law that prohibited a person subject to a temporary restraining
order for domestic violence from possessing a firearm. See Brief for the State of Alabama as Amicus Curiae in
Support of Appellee, U.S. v. Emerson, 270 F.3d 303 (5th Cir. 2001), cert. denied, 2002 U.S. LEXIS 4269.
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Rights of Gays and Lesbians
During his tenure in the office of the Alabama Attorney General, Pryor has taken a
number of actions hostile to the rights of gays and lesbians. In 1995, as a Deputy Attorney
General, Pryor and then-Attorney General Jeff Sessions joined an amicus brief in support of the
state of Colorado in its defense of a voter initiative that prohibited local governments from
enacting laws protecting gays and lesbians from discrimination.31 Colorado’s Supreme Court
had struck down the initiative as a denial of equal protection, and the state appealed. Explaining
why his office felt compelled to join the brief, Pryor stated: “The attorney general of Alabama
felt strongly that we don’t need to be finding new rights in our Constitution [because] we’ve
done enough of that in recent years.”32 In a speech to the Federalist Society, Pryor criticized the
Supreme Court’s 6-3 decision invalidating the Colorado initiative, as well as its decision in U.S.
v. Virginia [striking down the Virginia Military Institute’s exclusion of women], as “both
antidemocratic and insensitive to federalism.”33
Pryor vowed to “aggressively” defend Alabama’s law banning sodomy between
unmarried adults, and successfully defended the statute in a state court challenge.34 Later, Pryor
filed an anti-gay brief in Lawrence v. Texas on behalf of Alabama urging the Supreme Court to
uphold Texas’ law banning only same-sex sodomy.35 Such was his interest in the case that Pryor
unsuccessfully petitioned the Court for leave to participate in oral argument.36 In this brief,
Pryor argues that the Constitution may protect the right of gay and lesbian people to be gay, but
it certainly does not protect them from engaging in consensual, intimate sexual relations:
The Texas statute in question does not criminalize petitioners’ sexual orientation,
which may or may not be a matter of choice and thus may arguably be protected
from state discrimination by the Equal Protection Clause of the Fourteenth
Amendment. Rather, the Texas anti-sodomy statute criminalizes petitioners’
sexual activity, which is indisputably a matter of choice. Petitioners’
protestations to the contrary notwithstanding, 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”).37
31
Brief of States as Amici Curiae in Support of Petitioner, Romer v. Evans, 517 U.S. 620 (1996).
Mike McKee, “AG Joins Amicus Supporting Colorado Anti-Gay Initiative,” THE RECORDER, May 23, 1995.
33
Bill Pryor, “Federalism and the Court: Do Not Uncork the Champagne Yet,” Remarks before the National
Federalist Society, Washington, D.C., Oct. 16, 1997.
34
Jennifer J. Smith, “Ala. Sodomy Law Challenge Dismissed,” SOUTHERN VOICE, April 16, 2003.
35
Brief of States as Amici Curiae in Support of Respondent, Lawrence and Garner v. Texas, 2002 U.S. Briefs 102.
36
See U.S. Supreme Court docket for Lawrence and Garner v. Texas (02-102).
37
See Lawrence brief at pg. 25.
32
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Recent press reports have drawn comparisons between Pryor’s comments and those of Senator
Rick Santorum (R-PA), who likened homosexuality to bigamy, polygamy, incest and adultery.38
Pryor’s comments have provoked criticism from the Log Cabin Republicans, who indicated that
they would oppose Pryor’s nomination, and the Gay and Lesbian Alliance Against Defamation,
who expressed serious concerns about Pryor’s ability to impartially preside over cases involving
gays and lesbians.39
Rights of the Disabled
Pryor’s has fought aggressively to prevent people with disabilities from enforcing their
rights under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.
Pryor is best known for his advocacy in Board of Trustees of Alabama v. Garrett,40 which
severely limited the rights of people with disabilities to enforce the ADA. Pryor argued that
Congress had no power under the Fourteenth Amendment to apply Title I of the ADA, which
prohibits employment discrimination against the disabled, to state employers. He and fellow
states’ rights advocate Jeffrey Sutton persuaded the Supreme Court’s conservative majority to
rule, 5-4, that state employees cannot sue their employers for damages under Title I of the ADA.
Pryor has also argued that Congress has no power to apply Title II of the ADA, which
requires accommodations for persons with disabilities in public services, programs, and
activities, to state entities. In Pennsylvania Dep’t. of Corrections v. Yeskey41 and Medical Board
of California v. Hanson42, Pryor filed amicus briefs with the Supreme Court arguing that
Congress had exceeded its Fourteenth Amendment power in applying Title II to the states. 43
Pryor has also used federalism arguments to prevent people with disabilities from
enforcing their rights under Section 504 of the Rehabilitation Act. On remand from the Supreme
Court in the Garrett case, Patricia Garrett sought to pursue her Section 504 claim that the
University of Alabama had demoted because she developed breast cancer. The trial court
rejected her claims based on Pryor’s argument that Congress could not require states to waive
their immunity under Section 504 in exchange for accepting federal funds.44 Ms. Garrett is
appealing that ruling to the Eleventh Circuit Court of Appeals.
Jeffrey McMurray, “Nominee Brief Resembles Santorum Remarks,” AP, May 1, 2003; see also Ellen Goodman,
“The Divine Right of Political Kings,” PITTSBURGH POST, April 30, 2003.
39
Id.
40
531 U.S. 356 (2001).
41
524 U.S. 206 (1998).
42
No. 02-479, cert. dismissed, 173 S.Ct. 1779 (2003).
43
In Yeskey, Pryor also challenged Congress’ power under the Commerce Clause to apply the ADA to state prisons.
He argued that the ADA had no application to state prisons at all, an argument rejected by the Supreme Court.
44
Garrett v. University of Alabama at Birmingham Bd. of Trustees, 223 F. Supp.2d 1244 (N.D. Ala. 2002).
38
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Race Discrimination
By contrast with his outspoken hostility to the rights of women and gays and lesbians,
Pryor has been quite reticent in speaking about, and taking action on, issues of race. His record
in this area is mixed, at best. He has called for repeal of a key section of the Voting Rights Act,
but defended a redistricting plan that created majority-minority districts. He called for repeal of
Alabama’s clearly unconstitutional ban on interracial marriage, but has filed a number of briefs
urging the Supreme Court to reach results that adversely affect minorities.
In 1997, Pryor urged Congress to consider abolishing a key provision of the Voting
Rights Act, which has been critical in securing the right to vote in states with a stark history of
racial discrimination. While testifying before a Congressional Committee, Pryor urged the
Committee to “consider seriously…the repeal or amendment of Section 5 of the Voting Rights
Act,” which requires Justice Department pre-clearance approval of state and local changes to
voting procedures that may have an adverse impact on minority voters. He labeled Section 5 an
“affront to federalism and an expensive burden that has far outlived its usefulness.”45
By contrast, in Sinkfield v. Kelley,46 Pryor joined African-American voters in successfully
appealing to the Supreme Court a lower court decision that had invalidated a state redistricting
plan that had maximized the number of majority-minority legislative districts as unconstitutional
racial gerrymandering. The plan had increased the number of both African Americans and
Republicans in the legislature, while reducing the number of white Democrats.47 The Supreme
Court, in a per curiam opinion, reversed the lower court ruling, finding that the white voters who
had challenged the plan lacked standing.48
Pryor did publicly support efforts to repeal Alabama’s ban on interracial marriage, a
position not adopted by every Alabama politician.49 Of course, this provision had been rendered
unconstitutional and inoperative ever since the Supreme Court’s 1967 decision in Loving v.
Virginia.50 The Reverend C.T. Vivian, who had been an aide to the Reverend Martin Luther
King Jr., was unimpressed with Pryor’s position on the interracial marriage ban: “You’d have to
be a Klansman to be opposed to repealing that.”51
“Judicial Activism: Assessing the Impact,” Testimony of Alabama Attorney General Bill Pryor, U.S. Senate
Judiciary Committee, Subcommittee on the Constitution, Federalism & Property Rights, July 15, 1997.
46
See Sinkfield v. Kelly, 531 U.S. 28 (2000).
47
“Case could force new elections,” AP, Dec. 19, 1999.
48
531 U.S. 28.
49
See Heather Henderson, “Pryor Nominated to 11th U.S. Circuit Court of Appeals,” THE CRIMSON WHITE,
April 18, 2003. In particular, Governor Don Sigelman declined to take a position on the issue. See Bill Rankin,
“Bush Judicial Nominee a Conservative Activist,” THE ATLANTA JOURNAL AND CONSTITUTION, May 25,
2003.
50
388 U.S. 1 (1967).
51
Mary Orndorff, “Activists Protest Pryor Nomination: `Foot Soldiers’ Cite His Challenges of Voting Rights Act,”
AP, May 6, 2003.
45
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Pryor has also filed a number of briefs in the U.S. Supreme Court that take positions
adverse to the interests of racial and ethnic minorities. In Alexander v. Sandoval, a challenge to
Alabama’s policy of administering drivers’ license tests only in English, Pryor successfully
argued that the Hispanic plaintiff could not bring suit under the disparate impact regulations of
Title VI of the 1964 Civil Rights Act. In Buckhannon Board and Care Home, Inc. v. West
Virginia Department of Health and Human Resources, Pryor joined other states in urging the
Supreme Court to deny attorneys’ fee awards to plaintiffs’ counsel when state defendants
“voluntarily” rectify violations of federal law in response to a suit, thereby making it more
difficult for victims of civil rights violations to find counsel.52 And, in Chicago v. Morales,
Pryor joined other states in unsuccessfully defending the constitutionality of an anti-loitering
ordinance that Chicago police were using disproportionately to target minority youth. 53
Pryor’s nomination has divided the African American community in Alabama. Pryor has
received the support of at least three prominent African-American Democrats in Alabama: U.S.
Representative Artur Davis (D-Birmingham), longtime state representative Alvin Holmes (DMontgomery), and Joe Reed, the chairman of the Alabama Democratic Conference.54 By
contrast, a group of civil rights activists, including Fred Shuttlesworth, Martin Luther King (III),
Dick Gregory, and the Reverend C.T. Vivian, publicly announced their opposition to Pryor’s
nomination on the fortieth anniversary of the Birmingham civil rights marches.55
Environmental Rights
Pryor has a very troubling record of opposition to federal environmental protections. He
has questioned the constitutionality of significant provisions in the Clean Water Act, the
Endangered Species Act, and the Clean Air Act.56
Alone among the fifty state attorneys general, Pryor sought to weaken the Clean Water
Act in a Supreme Court amicus brief he filed in Solid Waste Agency of Northern Cook
County (SWANCC) v. United States Army Corps of Engineers, a case challenging the federal
government’s authority to protect critical habitat for migratory birds.57 Pryor argued that, if the
Clean Water Act allowed the federal government to regulate small lakes and wetlands, the act
was unconstitutional.58
52
Brief of Amici States in Support of Respondents, Buckhannon Board and Care Home, Inc. v. West Virginia
Department of Health and Human Resources, 532 U.S. 598 (2001).
53
Brief of Amici States in Support of Petitioner, Chicago v. Morales, 527 U.S. 41 (1999).
54
Heather Henderson, “Pryor Nominated to 11th U.S. Circuit Court of Appeals,” THE CRIMSON WHITE, April 18,
2003.
55
Jannell McGrew, “Civil Rights Veterans Denounce Pryor,” THE MONTGOMERY ADVISER, May 7, 2003.
56
For a more comprehensive analysis of Pryor’s record on environmental rights, please refer to the report of
Community Rights Council.
57
Brief for the State of Alabama as Amicus Curiae in Support of Petitioner, SWANCC v. Army Corps of Engineers,
531 U.S. 159 (2001). Eight states filed on the other side, in support of federal regulation. See Brief for the States of
California, Iowa, Maine, New Jersey, Oklahoma, Oregon, Vermont, and Washington as Amici Curiae in Support of
Respondent.
58
Brief for the State of Alabama at 1.
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In Gibbs v. Babbitt, Pryor filed another amicus brief urging the Supreme Court to reverse
a ruling by the Fourth Circuit Court of Appeals, which had upheld the federal government’s
authority to prevent the killing of red wolves on private land under the Endangered Species Act.
Pryor argued that “[a]pplication of the red wolf rule to private lands cannot be sustained as an
exercise of Congress’s power under the Commerce Clause,” and asserted that, unless the
Supreme Court overturned the ruling, “it is inevitable that some other endangered species will
find its way onto private property and cause a criminal prosecution, the derailing of a hospital
project, or other injury to State and local interest.”59 The Supreme Court declined to hear the
case.60
Pryor has also testified before Congress in opposition to the Environmental Protection
Agency’s enforcement of the Clean Air Act. Under President Clinton, the EPA had begun to
increase enforcement of regulations governing coal-burning power plants. Last year, Pryor
expressed hostility for these enforcement efforts, suggesting that they interfered with state
prerogatives: “EPA invaded the province of the States and threw their respective air pollution
control programs into upheaval by reversing—with the blunt tool of enforcement instead of a
collaborative rulemaking process—interpretations that are central to the day-to-day activities of
state regulators.”61
Separation of Church and State
Over the course of his career, Pryor has been a vocal proponent of weakening the
prohibition on state-established religion. In a 1997 article, Pryor expressed his lack of respect
for this crucial constitutional doctrine: “Will the court continue to modify the errors of case law
that created the so-called separation of church and state?”62 In a 1999 speech before the
Christian Coalition, Pryor warned: “One of the greatest threats to (the) Judeo Christian
perspective is the building of…`the naked public square,’ in which religious expression and
religiously grounded morality are systematically excluded from our public life.”63
Pryor has been a longtime supporter of controversial Alabama Supreme Court Chief
Justice Roy Moore’s efforts to display the Ten Commandments in the rotunda of the Alabama
Supreme Court.64 In 1997, Pryor, along with the Christian Coalition’s Ralph Reed, attended a
“Save the Commandments” rally in Montgomery, where he stated: “God has chosen, through his
son Jesus Christ, this time and this place for all Christians…to save our country and save our
courts.”65
59
Brief for the State of Alabama as Amicus Curiae in Support of Writ of Certiorari at pg. 2-4, Gibbs v. Babbitt (filed
on January 26, 2001).
60
531 U.S. 1145 (2001).
61
Statement of Bill Pryor before the Senate Environment and Public Works Committee, July 16, 2002.
62
Bill Pryor, “When Federal Judges Should Be Impeached,” THE HUNTSVILLE TIMES, July 25, 1997.
63
Kelly Greene, “Bill Pryor Hopes to Ride Court Crusade to the Top,” WALL STREET JOURNAL, May 21, 1997.
64
Id.
65
See Ellen Goodman, “The Divine Right of Political Kings,” PITTSBURGH-POST GAZETTE, April 30, 2003; see
also Buster Kantrow, “Business Groups Worrying Over Alabama Court Race,” WALL STREET JOURNAL,
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When a suit was filed against Moore challenging the constitutionality of the Ten
Commandments display, Pryor immediately announced that he would help oversee a “vigorous
defense.”66 Last year, a federal judge declared that the monument violated the Establishment
Clause of the First Amendment, and ordered it to be removed.67 Moore has appealed the federal
court’s decision to the 11th Circuit.68
In 2001, Pryor filed a brief supporting the city of Elkhart, Indiana’s request for Supreme
Court review of a 7th Circuit decision requiring it to remove a Ten Commandments monument
outside City Hall.69 In that brief, Pryor compared efforts to remove the monument to the
destruction in Afghanistan of two Buddha statutes by the Taliban, the Islamic fundamentalist
group.70 The Supreme Court declined to review the case.71
When Chief Justice Moore was still a trial judge, Pryor had filed suit to defend Moore’s
practice of having Christian clergymen give prayers when jurors first assembled in his courtroom
for a trial. The complaint Pryor signed asked an Alabama trial judge to declare this practice--as
well as an earlier display of the Ten Commandments--constitutional under the U.S. and Alabama
Constitutions.72 The trial judge ruled the practice unconstitutional: “Judge Moore has
March 8, 2000 at Pg. S1. Pryor also urged the Senate Judiciary Committee to adopt a resolution put forward by
Alabama Senators Shelby and Sessions supporting the display of the Ten Commandments in public buildings. He
condemned the Supreme Court’s “revision of our constitutional history to advance a political agenda that is hostile
to any acknowledgement of God by government.” “Judicial Activism: Assessing the Impact,” Testimony of
Alabama Attorney General Bill Pryor, U.S. Senate Judiciary Committee, Subcommittee on the Constitution,
Federalism & Property Rights, July 15, 1997.
66
Steven Benen, “Monumental Mistake,” CHURCH & STATE, Dec. 1, 2001, No. 11, Vol. 54 at Pg. 8. After Pryor
made this statement, he deputized long-time Moore attorney Stephen Melchior, along with constitutional attorneys
Herbert Titus and John Eidsmoe, to serve as deputy attorneys general for the Moore defense team. See John Aman,
“ACLU, Allies Bring Suit Against Chief Justice Moore,” available at
http://www.reclaimamerica.org/PAGES/NEWS/newspage.asp?story=890; see also Glassroth v. Moore, 229
F.Supp.2d 1290 (M.D. Ala. 2002).
67
Kelly Greene, “Bill Pryor Hopes to Ride Court Crusade to the Top,” WALL STREET JOURNAL, May 21, 1997.
68
Id. The Supreme Court’s recent announcement that it will not hear an appeal of a Kentucky case involving the
same issues could have a significant effect on Moore’s case. If the 11 th Circuit rules against Moore, and the
Supreme Court declines to hear his appeal, the state will likely be forced to pay the legal fees of the lawyers who
challenged Moore. The fees, which could conceivably total approximately $1million dollars, would have to be paid
by the taxpayers of Alabama. See Eddie Curran, “Legal Fees in Commandments Case Could Reach $1 Million,”
AP, May 2, 2003.
69
Brief for the States in Support of Petition for a Writ of Certiorari, City of Elkhart v. Books, No. 00-1407, April 12,
2001.
70
Id. at 3; see also “Alabama Attorney General Files Brief Backing Elkhart in Appeal,” AP, April 13, 2001.
71
Elkhart v. Books, 532 U.S. 1058 (2001). Chief Justice Rehnquist, joined by Justices Scalia and Thomas,
dissented, arguing that the Court should have granted certiorari.
72
Complaint for Declaratory Judgment, State v. ACLU, Civ. Action No. CV-95-919-PR (Ala. Cir. Ct. Feb. 10,
1997). Jeff Sessions was Attorney General at the time, but Pryor signed the briefs as Deputy Attorney General.
Pryor apparently brought this action, at least in part, in an attempt to force the federal courts to abstain from hearing
a related case involving Judge Moore. See id. at ¶ 27.
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acknowledged that through prayer in his court, he is promoting religion.”73 Pryor appealed the
trial court’s decision. Pryor argued that the prayers in Judge Moore’s courtroom were
indistinguishable from the invocation at the beginning of a session of the U.S. Supreme Court in
which the clerk says, “God save the United States and this Honorable Court.”74 However, the
prayers in Judge Moore’s courtroom were quite different. As Pryor admitted, “each of the clergy
who had delivered a prayer in [Judge Moore’s] presence was a Christian” and often directed
prayers to Jesus Christ or the Savior but defended this fact with Moore’s statement that “‘[T]hese
jurors are . . . ninety-five percent Christians or persons who believe in God if they are not
Christians.”75 The Alabama Supreme Court dismissed Pryor’s appeal on the grounds that it did
not involve a real controversy between the parties.76
Pryor has also been a vocal proponent of the right to student-led prayer in public schools.
In 1999, in a speech to the Christian Coalition, with whom Pryor is closely affiliated,77 he
praised the “vision of Pat Robertson,” in establishing the American Center for Law and Justice
(ACLJ), a religious right advocacy group.78 He went on to describe how he appointed the
ACLJ’s Jay Sekulow to be a Deputy Attorney of Alabama so that they could, together, “[chart] a
course for a victory for student-led prayer.”79 Pryor declared that his victory in court in a school
prayer case promoted the “perspective of our Founding Fathers that we derive our rights from
God and not from government.”80
73
State v. ACLU, Civ. Action No. CV-95-919-PR, at 2 (Ala. Cir. Ct. Nov. 22, 1996) (slip op.). In addition, the trial
court initially found that the Ten Commandments did not violate the Constitution, but reversed his decision after
visiting Judge Moore’s courtroom and considering that Judge Moore had “unequivocally stated that the plaques are
not in the courtroom for a historical, judicial or educational purpose, bur rather, and clearly to promote religion.”
State v. ACLU, Civ. Action No. CV-95-919-PR at 2(Ala. Cir. Ct. Feb. 10, 1997) (slip op.).
74
Id. at 17-23.
75
Brief of the State of Alabama at 8, Alabama v. ACLU, 711 So. 2d 952 (Ala. 1998) (alterations in the original). At
the time of this appeal, Jeff Sessions had been elected to the Senate, so Pryor was the Alabama Attorney General as
well as the attorney who signed the appellate brief.
76
See Alabama v. ACLU, 711 So. 2d 952 (Ala. 1998).
77
Bob Van Voris, “Prayer Cases Plus a Day Job,” NATIONAL LAW JOURNAL, Dec. 25, 2000 at Pg. A17;
“Christian Coalition Woes Widen with Lawsuit Over Past-Due Bills,” CHURCH & STATE, Jan. 1, 2000, No.1, Vol.
53, at Pg. 17.
78
Remarks of Attorney General Bill Pryor to Christian Coalition, “Road to Victory,” Washington, D.C., Oct. 1, 1999
at http://www.ago.state.al.us/speeches.
79
Id.
80
See “Ala. AG Pryor Addresses Christian Coalition,” AP, Oct. 3, 1999. In 1999, Pryor obtained a successful
reversal by the 11th Circuit of a federal court order that prohibited public school officials from allowing any type of
prayers at graduation or commencement exercises and forbade using public address systems for religious messages.
See Chandler v. James,180 F.3d 1254 (11th Cir. 1999), vacated, 530 U.S. 1256 (2000), reaffirmed with clarification,
230 F.3d 1313 (11th Cir. 2000), cert. denied, 533 U.S. 916 (2001); see also Jonathan Ringel, “11th Circuit Could
Ignite Capital Controversy,” FULTON COUNTY DAILY REPORT, Jan. 14, 2003. More recently, Pryor sent a
letter to all city and county schools to ensure that they understood that an annual student-led prayer event was
protected under the First Amendment. Peggy Ussery, “Attorney General Clarifies Student-Led Prayer,” DOTHAN
EAGLE, Sept. 9, 2002.
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Two major Jewish organizations, the National Council of Jewish Women and the
Religious Action Center of Reform Judaism, have publicly opposed Pryor’s nomination because
of, inter alia, his opposition to the separation of church and state.81
Rights of the Accused and Criminal Punishment
Pryor has been a longtime proponent of weakening the rights of the accused, and of harsh
punishment for those convicted of crimes. In a speech before Federalist Society members, he
criticized the Supreme Court’s landmark decision in Miranda v. Arizona as one of “the worst
examples of judicial activism.”82 He has also displayed insensitivity to the racial disparities that
exist in the criminal justice system. During the last two years, in three significant cases
involving the rights of the accused, the U.S. Supreme Court has either refused to hear or ruled
against positions Pryor has advanced.
Hope v. Pelzer.83 In 1995, then-Governor Fob James, as part of a “get tough program for
criminals,” revived the practice of tying unruly prisoners to outdoor hitching posts, called
“restraining” bars by corrections officials. Guards would handcuff unruly inmates to the chesthigh horizontal bars, for as long as seven hours at a time.84 Inmate Larry Hope alleged that he
was chained to a hitching post for seven hours in the hot sun with his shirt off. He was given
water only once or twice and permitted no bathroom breaks.85 Hope sued for damages for
violations of his Eighth Amendment right to be free from cruel and unusual punishment.86
Attorney General Pryor defended the use of the hitching post as an effective method to
prevent malingering: “We don’t want to reward the prisoner who refuses to work to just sit in a
jail cell and watch television while all of his fellow inmates are out laboring in hot fields.”87 He
also vigorously defended the actions of the prison officials: “We believe that front-line officers
following the rules as they understand them are entitled to be free from liability from these kinds
of lawsuits.”88 Pryor argued in Alabama's brief to the Supreme Court that because the prison
guards did not act with deliberate indifference to the inmate's health and safety, the prison guards
should not be held liable for their actions.89
Ori Nir, “Groups Aim to Torpedo President’s Judge Pick: Pryor Opposed on Church-State,” FORWARD, May
16, 2003.; see also “Two Jewish Groups Oppose Pryor for 11th Circuit,” AP, May 17, 2003.
82
Bill Pryor, “The Supreme Court as Guardian of Federalism,” Remarks at “Federalism: The Quiet Revolution,” an
event sponsored by the Federalist Society and the Heritage Foundation on July 11, 2000.
83
122 S.Ct. 2508 (2002).
84
David White, “Inmate Can Sue Over Hitching Post,” BIRMINGHAM NEWS, June 28, 2002.
85
Id.
86
“U.S. Supreme Court to Hear Inmate Suit Over `Hitching Posts’,” AP, April 8, 2002.
87
“Supreme Court to hear arguments in case testing whether Alabama prison hitching posts are cruel and unusual
punishment,” National Public Radio, Morning Edition, April 17, 2002.
88
“U.S. Supreme Court to Hear Inmate Suit Over `Hitching Posts’,” AP, April 8, 2002.
89
Id.; see also Mary Orndorff, “High Court to Hear Case of Shackled Prisoner, BIRMINGHAM NEWS, April 8,
2002.
81
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A 6-3 majority of the Court ruled that the Alabama corrections officers could be sued for
money damages. The Court said that the officers did not have the protection from lawsuits
normally given state employees because they should have known that handcuffing a prisoner to a
restraining bar was a clear violation of the Eighth Amendment's prohibition on cruel and unusual
punishment. Justice Stevens, writing for the Court, said:
“Hope was treated in a way antithetical to human dignity -- he was hitched to a
post for an extended period of time in a position that was painful and under
circumstances that were both degrading and dangerous. The obvious cruelty of
the practice should have put the guards on notice that they were violating the
inmate's constitutional rights.”90
After the Supreme Court rejected the state’s arguments, Pryor complained that any
money damages awarded to Hope and other inmates would pose great expense to Alabama’s
taxpayers, since prison officers are covered by Alabama’ s self-insurance program.91
Alabama v. Shelton.92 Pryor sought to limit the constitutional right of the indigent to
counsel. This case concerned the Sixth Amendment right of an indigent defendant charged with
a misdemeanor that was punishable by imprisonment, fine, or both, to the assistance of courtappointed counsel. The defendant, tried without counsel, was convicted of third-degree assault,
and was sentenced to a jail term of 30 days, which the trial court immediately suspended, placing
Shelton on probation for two years. The question presented was whether the Sixth Amendment
right to counsel applied to a defendant in this situation.
Pryor, who argued the case himself, insisted that the requirement that states provide
attorneys to poor defendants accused of minor crimes would divert resources away from more
important functions of the criminal justice system: “The principles of federalism strongly support
the continued freedom of states to manage their scarce judicial resources, as they deem
appropriate, in cases of misdemeanors where the defendants suffer only probation, not actual
imprisonment”93 Pryor went on to argue that it was “reasonable then for [states] to preserve
[their] own resources, just as a more affluent defendant would…preserve its resources [so as] not
to incur the cost of counsel in this kind of circumstance.”94
The U.S. Supreme Court, by a 5-4 margin, rejected Pryor’s argument, and found that
because a suspended sentence may be revoked if a defendant fails to adhere to conditions of
probation, it amounted to a “term of imprisonment” for which, under the Court’s precedents, the
appointment of a lawyer is a constitutional prerequisite.95
536 U.S. 730, 745 (2002); see also David White, “Inmate Can Sue Over Hitching Post,” BIRMINGHAM NEWS,
June 28, 2002.
91
Id.
92
535 U.S. 654 (2002).
93
Mary Orndorff, “Pryor Will Step Into Role of Centrist,” BIRMINGHAM NEWS, Dec. 26, 2001.
94
Oral Argument of Bill Pryor, Alabama Attorney General, in Alabama v. Shelton, 535 U.S. 654 (2002); oral
argument at 2002 WL 334529 at 48 (Feb. 19, 2002).
95
535 U.S. 654 (2002).
90
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Death Penalty. Over the course of his career, Pryor has demonstrated a particular
obsession with the death penalty. He filed a brief in the Supreme Court supporting the execution
of the mentally retarded. Pryor also zealously defended Alabama’s use of the electric chair, even
though almost every other state in the nation had eliminated this practice. Pryor has defended
the quality of representation afforded indigent capital inmates, despite compelling evidence to
the contrary, and has fought against providing death row inmates more frequent access to
counsel. He has displayed insensitivity towards the racial disparities that exist in the states’
administration of the death penalty and has strenuously resisted efforts to test physical evidence
that may prove the innocence of convicted prisoners. Pryor even threatened the Alabama State
Bar Association with suit to dissuade the bar from passing a resolution calling for a moratorium
on executions.
Atkins v. Virginia.96 Pryor filed an amicus brief supporting Virginia’s position that
executing the mentally retarded did not violate the Constitution.97 The Supreme Court, by a
margin of 5-4, ruled that executing the mentally retarded violated the Constitution’s Eighth
Amendment prohibition on cruel and unusual punishment. Following the Court’s ruling, Pryor
suggested that Alabama could take steps to evade the Court’s decision. He pointed out that
states were still free to develop their own standards for determining whether a defendant’s
mental retardation is sufficient to prevent execution. Pryor also warned that states need to be on
guard against people pretending to be retarded in order to avoid execution.98
Penry v. Johnson.99 In this case, Pryor was the only state attorney general to file an
amicus brief urging the Court to deny the habeas corpus petition of a defendant who had been
sentenced to death by a jury that had not made fully aware of the fact that the defendant was
severely abused as a child, and may have been mentally retarded.100
Electrocution. Pryor has vigorously defended Alabama’s use of the electric chair. In
2000, Alabama was one of only three states that used the electric chair as its sole method of
execution. When the Supreme Court issued a stay of an Alabama death row inmate’s execution
to consider whether death by electrocution constituted cruel and unusual punishment, Pryor told
the press: “[T]his issue should not be decided by nine octogenarian lawyers who happen to sit on
the Supreme Court.”101 Pryor also maintained that Alabama would not, as Florida had done,
change its method of execution to lethal injection: “I do not support doing what the state of
96
536 U.S. 304 (2002).
Robin DeMonia, “Pryor: Let Death-Penalty Ruling Stand,” BIRMINGHAM NEWS, March 28, 2001.
98
“AG: Supreme Court’s Affect on Alabama is Minimal,” AP, June 20, 2002; see also Brief for the States as Amici
Curiae in Support of Respondent, 2000 U.S. Briefs 8452.
99
532 U.S. 782 (2001). The Supreme Court, in reversing the 5 th Circuit, held that although the supplemental
instruction to the jury mentioned mitigating evidence, the mechanism it purported to create for the jurors to give
effect to that evidence was ineffective and illogical, and provided an inadequate vehicle for the jury to make a
reasoned moral response to the mitigating evidence.
100
Brief of Amicus Curiae State of Alabama in Support of Respondent, Penry v. Johnson, 2000 U.S. Briefs 6677.
101
Bob Johnson, “`Yellow Mama’ in Jeopardy,” MONTGOMERY ADVERTISER, Feb. 5, 2000.
97
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Florida did. I do not believe that we should be bullied by the fear that the Supreme Court could
rule against us.”102
Capital representation. Pryor has repeatedly insisted that Alabama’s capital defense
system does not have any problems. At a hearing before the Senate Judiciary Committee, Pryor
testified: “Legislation aimed at setting national standards for defense counsel in capital cases,
therefore, seeks to remedy a problem that, at least in my State, does not exist. . . . The legal
representation received by those charged with capital murder is not, as a general matter,
inadequate.”103 Pryor made this assertion despite known instances in Alabama of attorneys
providing abysmal representation of capital defendants including sending a client sexually
explicit correspondence during trial;104 being drunk at a client’s trial;105 and stealing money by
cashing a client’s payroll check that was given to counsel for use as a court exhibit to show the
client’s level of mental disturbance.106 Pryor also told the Committee that there were only two
instances of ineffective assistance of counsel found in Alabama cases since 1990.107 However, at
the time of his statement, ineffectiveness had been found in at least five Alabama capital cases in
state and federal courts since 1990.108
“Justices Block an Execution in Alabama’s Electric Chair,” AP, Feb. 5, 2000. Ultimately, the Court, in a 5-4
decision rejected the Alabama inmate’s claim and voted to let his execution proceed. In re Tarver, 528 U.S. 1146
(2000) (stay of execution granted pending further order), pet. writ for habeas corpus denied and stay vacated, Tarver
v. Alabama, 528 U.S. 1152 (2000), cert den., 529 U.S. 1063 (2000).
103
Questions of the Senate Judiciary Committee in Response to the Hearing on Protecting the Innocent: Ensuring
Competent Counsel in Death Penalty Cases, 107th Cong. 485 (June 27, 2001) (response of Bill Pryor, Attorney
General of the State of Alabama, to questions from Sen. Richard J. Durbin, at 3, 5), available at
http://www.access.gpo.gov/ congress/senate/senate14ch107.html
104
Neelley v. State, 642 So.2d 494, 499 (Ala. Crim. App. 1993) (trial attorney acknowledged sending client letters
containing sexual innuendo to "keep her spirits up," but that they were merely "jailhouse" games with "jailhouse
talk"); cert. quashed, 642 So.2d 510 (Ala.1994); aff’d, Neelley v. Nagle, 138 F.3d 917 (11th Cir. 1998), cert. den.
525 U.S. 1075 (1999). Ms. Neelley was granted clemency by Alabama Governor Fob James in 1999.
105
Ms. Haney’s trial was reported by Sara Rimer, In Alabama, A Neglected Defense System Skews Death Row
Justice, New York Times (March 1, 2000).
106
Daniel v. Thigpen, 742 F.Supp. 1535, 1557 (M.D. Ala. 1990).
107
Questions of the Senate Judiciary Committee in Response to the Hearing on Protecting the Innocent: Ensuring
Competent Counsel in Death Penalty Cases, 107th Cong. 485 (June 27, 2001) (response of Bill Pryor, Attorney
General of the State of Alabama, to questions from Sen. Richard J. Durbin, at 3, and to general questions of the
Committee at 10), available at http://www.access.gpo.gov/ congress/senate/senate14ch107.html.
108
See Cothren v. State, CC-94-1167.60, Order on Rule 32 Petition at 13-14 (Shelby Co. Cir. Ct., Dec. 14., 2000)
(new trial granted based on ineffective assistance of counsel claim); Jackson v. Herring, 42 F.3d 1350 (1995)
(counsel was ineffective for failure to present mitigating evidence at penalty phase); Hamilton v. State, 677 So. 2d
1254, 1258 (Ala. Crim. App. 1995) (circuit court granted relief based in part on ineffective assistance of counsel
claim, appellate court remanded for new trial); Watkins v. State, 632 So. 2d 555 (Ala. Crim. App. 1992) (circuit
court found that the defendant was denied effective assistance on appeal through counsel's failure to supplement
record with facts to support Batson argument; remanded for Batson hearing), opin. after remand, 659 So. 2d 689
(Ala. Crim. App. 1995); Daniel v. Thigpen, 742 F.Supp. 1535, 1562 (M.D. Ala. 1990) (“The breakdown of the
adversarial testing process in this case is particularly evident upon review of the lawyers' handling of the issue of the
petitioner's competence, his ability to assist them with his defense, and the use of independent psychiatric assistance
to assist the defense.”).
102
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Pryor also has defended Alabama’s severe restrictions on death row inmates’ access to
counsel. In Barbour v. Haley,109 death row prisoners petitioned to ease prison restrictions on
legal visits. The Alabama Department of Corrections permitted only one attorney in the prison at
a time, and restricted legal visits to three days a week, ending each day at 2 p.m. These limits, in
prisons where there were hundreds of prisoners, resulted in attorneys having to schedule visits
weeks and sometimes a month in advance to see death row prisoners with rapidly approaching
filing deadlines. Nevertheless, prior to his nomination, Pryor vigorously resisted any efforts to
negotiate improved access to counsel for death row inmates.
Racial bias. Pryor has also been critical of efforts to address evidence of racial bias in
the administration of the death penalty. When asked what steps Alabama could take to ensure
that the death penalty is fairly applied, regardless of the race of the offender, Pryor responded:
“Fortunately, in the United States of America, we levy punishments in the criminal justice
system based on the crimes committed, and not on the race of the defendants. And not on
whether…there is a certain percentage of the population who’ve been convicted or not. I would
hate for us to judge the criminal justice system in a way where we excuse people from
committing crimes because “well we’ve imposed enough punishments on that group this year.’
And that’s precisely what you are being asked to think with that kind of analysis. It’s
ridiculous.”110
Testing of physical evidence. Despite Pryor’s public stance that his “office will not
deny DNA testing to any inmate who presents a valid claim of innocence,”111 he has vigorously
resisted efforts to test physical evidence that may prove the innocence of convicted prisoners. In
Bradley v. Pryor,112 Pryor fought against a death row inmate’s efforts to compel the State to
produce certain physical and biological evidence gathered in the course of the capital
prosecution. The State claimed that the evidence was lost, but resisted giving more information
about the circumstances of its disappearance.113 The Eleventh Circuit Court of Appeals rejected
the State’s arguments and permitted Bradley to pursue a lawsuit against Pryor to obtain the DNA
evidence for testing. Pryor has also been unwilling to consider forensic testing in another case in
which three nationally renowned experts testified that the bullets recovered from a crime did not
match the weapon taken from a capital defendant’s home.114 When asked if he would authorize
the state forensic lab to retest the weapon, Pryor refused, maintaining that it would be “a waste
of time”115 to have a hearing on the case.
109 Barbour v. Haley, CV-01-1530-N (M.D. Ala. filed Dec. 28, 2001).
110
Debate before the Rotary Club of Birmingham, Alabama, “Is the Death Penalty Fair in Alabama?,” Aug. 29,
2002. Part of Pryor’s remarks were printed in an article by Stan Bailey, entitled “AG, Defense Lawyer Debate
Death Penalty,” BIRMINGHAM NEWS, July 29, 2002.
111
Bill Pryor, remarks to the Alabama State Bar Board of Bar Commissioners regarding the moratorium proposal,
Montgomery, AL (October 27, 2000), at http://www.ago.state.al.us/speeches.cfm?Item=Single&Case=38.
112
Bradley v. Pryor, 305 F.3d 1287 (11th Cir. 2002) (reversing district court's dismissal of death row prisoner’s suit
to compel the State to produce evidence for DNA testing).
113
Id. at 1289.
114
Hinton v. State, CC-85-3363.60, 3364.60 (Jefferson County Circuit Ct., Ala.).
115
Editorial, Vindicating a verdict: Hinton case merits a closer look by prosecutors, Birmingham News, June 30,
2002.
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Moratorium on executions. Pryor threatened the Alabama State Bar Commissioners
with a lawsuit if the state bar adopted a resolution calling for a moratorium on executions in the
state until reforms could be made in the way capital cases were handled. In 2000, the Alabama
State Bar Association received a proposed resolution from one of its members to declare a
moratorium on the death penalty. Pryor gave an address to the Bar’s Board of Bar
Commissioners arguing against the proposal.116 In that address, Pryor presented what he termed
“the best reason why [the Bar] should not get involved with the moratorium issue,” that adopting
a moratorium resolution would “invite a federal lawsuit challenging the use of compelled dues to
finance this organization, which would be departing from its purpose:”
If the Bar adopts the proposed resolution in favor of a moratorium,
you will declare that you believe the system is flawed and that we
run a grave risk of executing an innocent person. That declaration
would imply that you believe that the district attorneys, their
assistants, my assistant attorneys general and I would violate our
duty to see justice done if we sought or allowed an execution to
proceed. You cannot expect the prosecutors of Alabama to be
forced to join an organization that impugns our integrity. You will
invite a challenge by those who wish no longer to be forced to
associate and contribute financially to a group that insults our
professional work. Such a challenge might well succeed.117
Second Amendment
Pryor has championed the Second Amendment rights of gun owners, and fought against
reasonable regulation of gun purchases. He received the National Rifle Association’s 2001
Harlon B. Carter Legislative Achievement Award.118 At its award presentation ceremony, the
NRA congratulated Pryor for fighting “frivolous” lawsuits against the gun industry, “[defending]
the Second Amendment in the courts,” helping to draft Alabama laws that immunized the gun
industry from municipal lawsuits, and repealing the two-day waiting period for handgun
purchases.119 Upon receipt of the NRA’s award, Pryor said: “In a republic that promotes a free
society, as opposed to a police state, one of the basic organizing principles is that individuals
have a right of self-defense and a right to acquire the means for that defense.”120
Pryor has sharply criticized lawsuits against the gun industry. At a 1999 news conference
of the American Shooting Sports Council, Pryor said: “These types of lawsuits threaten the entire
116
Bill Pryor, remarks to the Alabama State Bar Board of Bar Commissioners regarding the moratorium proposal,
Montgomery, AL (Oct. 27, 2000), at www.ago.state.al.us/speeches.
117
Id. As of January 2003, the Alabama Board of Bar Commissioners has tabled all proposed resolutions. Carla
Crowder, “Death Row Most Crowded by State’s Size,” BIRMINGHAM NEWS, Jan. 19, 2003.
118
“NRA Awards Attorney General For Legislative Achievement,” AP, May 21, 2001.
119
Id.
120
Id.
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business community. The free market and the cause of human liberty cannot survive much more
of this litigation madness...[Gun suits] are a clear and present danger to the rule of law in our
nation.”121
In 2001, Pryor drafted a letter of support for U.S. Attorney General John Ashcroft’s
decision to assert in a court filing that the Second Amendment protected individual gun rights.
The letter, signed by seventeen state attorneys general, commended Ashcroft’s “position that the
`text and the original intent of the Second Amendment clearly protect the right of individuals to
keep and bear firearms.’”122 Pryor also filed an amicus brief challenging a Texas statute that
prohibited the possession of firearms by individuals against whom temporary restraining orders
for domestic violence had been entered,123 even though it is far from clear what legitimate
interest Alabama had in Texas’ gun laws.124
Opposition to Tobacco Litigation
Pryor was an outspoken opponent of the lawsuit brought by other states against the
tobacco companies to recover the costs of Medicaid treatments for smoking-related illnesses.
Pryor went on a public crusade to persuade other state attorneys general not to join the suit. In a
Wall Street Journal editorial, Pryor insisted that “this wave of lawsuits is about politics, not law,
and money, not public health.”125 In another interview, Pryor said that “the recent government
suits against tobacco and firearms industries trample upon the rule of law. The aim of this
litigation is to shift the awesome powers of legislative bodies to the judicial branch of the
government.”126 Arizona Attorney General Grant Woods, a fellow Republican, criticized Pryor
for his public campaign against the states’ lawsuit: “He’s been attorney general for about five
minutes, and already he’s acted more poorly than any other attorney general.”127 Instead of
suing the tobacco companies, Pryor argued that states should raise taxes on cigarettes to recoup
medical costs for treating sick smokers.128 Pryor’s highly publicized failure to persuade state
James Pilcher, “Heston Pledges NRA Support to Gun Industry in City Lawsuits,” AP, Feb. 1, 1999; Russ
Thurman, “Show 99: A Time to Shine,” SHOOTING INDUSTRY, April 1, 1999, No. 4, Vol. 44 at Pg. 32.
122
“State Briefs,” BIRMINGHAM NEWS, July 10, 2002; see also Dale Wetzel, “AG Says 2nd Amendment Supports
Individual Gun Rights,” AP, July 22, 2002.
123
Brief for the State of Alabama as Amicus Curiae in Support of Appellee, U.S. v. Emerson, 270 F.3d 303 (5th Cir.
2001), cert denied, 2002 U.S. LEXIS 4269.
124
Pryor, almost anticipating an assertion that he was acting pursuant to his own agenda or that of an interest group,
Pryor argued in the brief that the “state of Alabama has an interest in protecting the civil rights of its citizens,”
[namely] “that every citizen has a right to bear arms in defense of himself and the state.” Brief for the State of
Alabama as Amicus Curiae in Support of Appellee, U.S. v. Emerson, 270 F.3d 303 (5th Cir. 2001), cert denied, 2002
U.S. LEXIS 4269.
125
Bill Pryor, “Litigators’ Smoke Screen,” WALL STREET JOURNAL, April, 7, 1997.
126
Judyth Pendell, “Trial Lawyers’ Next Target: The Paint Industry,” WALL STREET JOURNAL, Oct. 18, 1997.
127
Woods went on to suggest that “Alabama would be better off with Richard Pryor,” the comedian, as state
attorney general. Kelly Greene, “Bill Pryor Hopes to Ride Court Crusade to the Top,” WALL STREET
JOURNAL, May 21, 1997.
128
In the fall of 1997, Pryor proposed a bill in the Alabama state legislature that would have essentially assessed a
$3.9 billion state tax on the tobacco industry for doing business in Alabama. See Robert Levy, “Wacky Tabacky
Politics,” THE WEEKLY STANDARD, Jan. 26, 1998. That measure ultimately failed to pass, but then-Governor
121
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attorneys general to raise taxes on cigarettes instead of suing the tobacco industry earned him a
spot on the Wall Street Journal’s list of the “losers of ‘97.”129
Pryor’s opposition to the tobacco lawsuit was ostensibly the result of a task force study
into the merits of the litigation. When Pryor was a deputy attorney general, then Attorney
General Jeff Sessions asked him to chair a state task force to determine whether Alabama should
join the states’ lawsuit against the tobacco industry.130 Pryor and the task force prepared an 89page report, which concluded that the states’ lawsuit was nearly impossible to win, and advised
against Alabama joining the suit.131 The Pryor task force also decided that smoking-related
health costs are not excessive because smokers die young, saving taxpayers money on Social
Security, pension benefits, nursing homes, and insurance.132
Some suspect, however, that Pryor’s real motive in opposing the lawsuit was his desire to
obtain contributions for his 1998 election campaign. In the winter of 1997, former Republican
National Committee Chairman Haley Barbour co-hosted a fundraiser in Washington for Pryor’s
1998 campaign.133 Despite Pryor’s public promise not to take contributions from the tobacco
and gambling industries, seven members of the fundraiser’s host committee were tobacco
lobbyists, including the vice president for federal relations at Phillip Morris.134 Four of the seven
tobacco lobbyists were reported to have made contributions to Pryor’s campaign.135 Pryor
maintained that he took “absolutely nothing” from tobacco companies or their political action
bank accounts, explaining that the tobacco lobbyists were “Alabama connections who
[happened] to have tobacco accounts as part of their portfolios, but did not write checks to
me.”136 Local attorneys criticized Pryor for taking tobacco money and for hiring Karl Rove137 as
a campaign consultant, because Rove had represented Phillip Morris from 1991 through 1995:
“All you have to do is follow the money trail to understand where the attorney general’s
allegiance is.”138
Pryor was also suspected of helping the tobacco companies in other ways. At Sessions’
request, Pryor attended confidential meetings with other state attorneys general at which they
discussed legal strategy for the tobacco lawsuit. According to Mississippi Attorney General
James signed into law a plan to spend any tobacco settlement money on programs for at-risk children. See Bill
Poovey, “Pryor Uses Church Forum to Point Out Challenger Attending Las Vegas Party,” AP, Oct. 15, 1998.
129
“Looking Back: Winners & Losers of ’97,” WALL STREET JOURNAL, Dec. 31, 1997.
130
Kelly Greene, “Bill Pryor Hopes to Ride Court Crusade to the Top,” WALL STREET JOURNAL, May 21,
1997.
131
Id.
132
Kelly Greene, “Tobacco Suit by Schools Hits a Snag,” WALL STREET JOURNAL, March 19, 1997.
133
Robert Levy, “Wacky Tabacky Politics,” THE WEEKLY STANDARD, Jan. 26, 1998.
134
Id.
135
Id.
136
Gita M. Smith, “Alabama Attorney General,” ATLANTA JOURNAL AND CONSTITUTION, Oct. 18, 1998.
137
According to public records, Pryor paid Rove approximately $50,000 in 1998.
138
“Beasley Says Pryor Ought to Step Aside from Tobacco Negotiators,” AP, Oct. 23, 1998. In that article, Beasley
suggested that Pryor should step aside from negotiations with the tobacco companies because of his connections to
the industry. Id. Beasley is, however, currently supporting Pryor’s nomination. See Bill Rankin, “Bush Judicial
Nominee a Conservative Activist,” THE ATLANTA JOURNAL AND CONSTITUTION, May 25, 2003.
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Mike Moore, a leader of the litigation effort, Pryor “would go to all of those meetings and take
copious notes.”139 Pryor also met with representatives of the tobacco companies. Moore
apparently suspects that Pryor may have shared some of the states’ legal strategy with the
defendants: “Whether it was as surreptitious as sneaking notes to the other side, I don’t know.
But tobacco lobbyists saw him as a friend. He was their friend. He defended them at all
costs.”140
What is known is that Pryor shared his task force report with the tobacco companies
before he shared it with the other state attorneys general. On March 13, 1997, the day before
Mississippi Attorney General Moore (and other state attorneys general) received a copy of the
Alabama task force’s report, the tobacco companies filed a copy in the Mississippi Supreme
Court as part of their response to Moore’s suit.141 Moore expressed considerable anger at Pryor’s
reported assistance to the tobacco companies: “Bill Pryor was probably the biggest defender of
tobacco companies of anyone I know. He did a better job of defending the tobacco companies
than their own defense attorneys.”142
As late as three months before the 1998 election, Pryor continued to defend his decision
to stay out of the tobacco litigation: “I’ve got to do what the law calls for. I will not file a
lawsuit to make some trial lawyer supporters rich.”143 However, less than a month before the
election, Pryor joined negotiations aimed at reaching a national settlement with the tobacco
industry.144 In the eventual settlement, Alabama received close to a billion dollars less than did
Mississippi, its far less populous neighbor. Press reports attributed this poor result for Alabama
to Pryor’s refusal to join the suit earlier.145
Access to Justice
Pryor has worked to limit access to justice, and strongly criticized the plaintiffs’ bar. In
addition to his opposition to tobacco and gun suits, he has defended binding arbitration and
worked to limit punitive damages.
In a 1997 interview, Pryor told a Wall Street Journal reporter that “no issue [was] closer
to [his] heart” than trying to rein in the plaintiffs’ bar.146 In a speech to members of the [Ronald]
Eric Fleischauer, “Pryor Called a Tobacco Sellout,” THE DECATUR DAILY, Oct. 30, 2002.
Id. If Pryor did indeed share plaintiffs’ confidential legal strategy with the tobacco company defendants, this
would be a serious breach of ethics and of his fiduciary obligations to the other states. See infra, p. 26. Senators
should question Pryor closely regarding his role in this process.
141
Id.
142
Eric Fleischauer, “Pryor Called a Tobacco Sellout,” THE DECATUR DAILY, Oct. 30, 2002.
143
Id.
144
Bill Poovey, “Pryor Uses Church Forum to Point Out Challenger Attending Las Vegas Party,” AP, Oct. 15,
1998.
145
Eric Fleischauer, “Pryor Called a Tobacco Sellout,” THE DECATUR DAILY, Oct. 30, 2002. Alabama
ultimately received approximately $3 billion dollars, while Mississippi received approximately $4.4 billion dollars.
Daniel Jackson, “Alabama Gets $3 Billion in Tobacco Money,” THE AUBURN PLAINSMAN, March 11, 1999.
146
Kelly Greene, “Bill Pryor Hopes to Ride Court Crusade to the Top,” WALL STREET JOURNAL, May 21,
1997.
139
140
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Reagan Forum, Pryor displayed a particularly hostile attitude towards trial lawyers that raises
serious concerns about his ability to be impartial in class action suits:
This taxation through litigation is accomplished in a remarkably inefficient
manner as huge sums of money are skimmed off the top by those leftist bounty
hunters also known as trial lawyers. Trial lawyer John Coale of Washington,
D.C. recently observed that trial lawyers enjoy red meat and liquor so much that
they would dare not sue the producers of those products. Heaven help us,
however, if there are some teetotalling vegetarians among the ranks of ATLA
who are unknown to Mr. Coale.147
In a speech to the American Shooting Sports Council, Pryor even suggested that trial
lawyers benefit from the improper influence of particular judges: “When [trial lawyers] file [suits
against the gun and tobacco industries], the[y] often carefully select courts where they have cozy
relations with judges who are politically susceptible to setting aside traditional legal doctrines.
The judges can reward their wealthy trial lawyer friends, who have been known to contribute to
judicial election campaigns or sit on judicial nominating commissions, and the judges can then
bask in the media attention that accompanies their so-called landmark rulings.”148
In 1998, Pryor defended a challenge to guidelines promulgated by the state’s insurance
commissioner that allowed insurers to include binding arbitration clauses in their policies,
removing consumers’ disputes from juries in favor of arbitrators, who often have ties to the
industry involved in the dispute.149 Pryor said that he preferred out-of-court arbitration over
insurance claims because arbitration keeps the dollar awards low, and this, in turn, helps
Alabama’s economy.150
Bill Pryor, “Fulfilling the Reagan Revolution by Limiting Government Litigation,” address to The Reagan Forum
at the Ronal Reagan Presidential Library, Simi Valley, CA, Nov. 14, 2000. In another speech, Pryor complained
that “the liberal agenda of denying individual responsibility is taken a step further by those leftist bounty hunters
(otherwise known as trial lawyers) who are slick experts in representing alleged victims of corporate greed.” Bill
Pryor, “The Smoking Gun” – The Next Case of Lawsuit Abuse,” Address to the American Shooting Sports Council
at their Annual Convention, Feb. 1, 1999.
148
Bill Pryor, “The Smoking Gun” – The Next Case of Lawsuit Abuse,” Address to the American Shooting Sports
Council at their Annual Convention, Feb. 1, 1999.
149
See Bill Poovey, “Pryor Uses Church Forum to Point Out Challenger Attending Las Vegas Party,” AP, Oct. 15,
1998; see also Libby J. Dawson, “Opposition to Binding Arbitration in Insurance Policies,” SPEAKIN’ OUT
NEWS, July 21, 1998; see also Dave Bryan, “Attorney General Pryor Says Anti-Arbitration Battle is at Federal
Level,” AP, May 3, 2000.
150
Gita M. Smith, “Alabama Attorney General: Democratic Challenger Sees Opportunity in Lost Tobacco Money,”
ATLANTA JOURNAL AND CONSTITUTION, Oct. 18, 1998. Statements Pryor made at a tobacco settlement
news conference appear to be in significant tension with his sustained efforts on behalf of industry and business
against the interests of workers and consumers: “Unlike many tort reformers of today, I am a defender of the right to
jury trial. When fair judges apply the simply traditional rules of evidence and the common law to control the
courtroom, juries decide controversial matters in a more democratic and commonsense way that promotes public
confidence in the judicial system.” Comments of Bill Pryor at a Washington, D.C. news conference sponsored by
the Cato Institute, Aug. 5, 1997.
147
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For his efforts to deny injured plaintiffs access to and relief from the civil justice system,
Pryor has received a number of awards and endorsements from conservative groups supported by
big business. The American Tort Reform Association gave Pryor its Civil Justice Achievement
Award, and the Alabama Citizens for a Sound Economy (CSE) presented its 2000 “Friend of the
Taxpayer” award to Pryor.151 The Alabama chapter of CSE chose Pryor for the award based on
his efforts to curb “excessive punitive damage awards,” and his criticism of lawsuits against the
tobacco and gun industries.152 In 2002, Pryor, addressing members of the American Tort Reform
Association, attributed his 2002 re-election to the endorsements of the Business Council of
Alabama, the Civil Justice Reform Committee, and other members of the business community.153
Work Against Interests of Abused and Neglected Children
In 1988, the Bazelon Center, the American Civil Liberties Union of Alabama, and the
Southern Poverty Law Center filed a class-action lawsuit in federal court against the
Commissioner of the Alabama Department of Human Resources (DHR) on behalf of foster
children claiming that the inadequate care and treatment they received while in DHR custody
violated their rights under the U.S. Constitution, § 504 of the Rehabilitation Act, and the
Adoptions Assistance and Child Welfare Act.154 The case never went to trial because the
plaintiffs’ lawyers and the state entered into a 1991 consent decree that required the state to
provide more services to children with emotional and behavioral disabilities in the custody of the
state.155
Five years later, even though the state had not fulfilled the terms of the decree,156 a new
DHR Commissioner appointed by Republican Governor Fob James asked the federal court to
vacate the consent decree, or at least to narrow the plaintiff class.157 Pryor, who had recently
been appointed Alabama’s Attorney General, represented the Commissioner.158 Pryor argued
that the federal judge should vacate or modify the consent decree because the abused and
151
See http://www.ago.state.al.us.
Martin Reiser, “Attorney General Bill Pryor Named `Friend of the Taxpayer,’” CITIZENS FOR A SOUND
ECONOMY, March 17, 2000. http://www.cse.org/newsroom.
153
Remarks of Bill Pryor at 2002 Annual Membership Meeting of the American Tort Reform Association,
Washington, D.C., March 14, 2002.
154
See R.C. v. Nachman. 969 F.Supp. 682, 684-689 (M.D. Ala. 1997)(describing chronology of case); see also Carla
Crowder, “Jeffco Child Welfare Official Leaving,” BIRMINGHAM NEWS, Feb. 16, 2003; John Zenor, “DHR
Commissioner Stepping Down,” AP, May 26, 2000; “Making Child Welfare Work,” a publication of the Bazelon
Center for Mental Health Law, which can be found at http://www.bazelon.org/rc.html.
155
See R.C., 969 F.Supp. at 686 and Bazelon Center report listed in FN 153.
156
During oral arguments, Pryor conceded that the AL DHR had not complied with the terms of the consent decree,
and that the prospects of future compliance were dim. Judge DeMent, in his written decision, was critical of Pryor’s
arguments: “Defendant now freely admits that it has not lived up to its end of the bargain, but nevertheless asks that
it be relieved of its obligations. In essence, defendant wants to have its cake and eat it too.” See R.C., 969 F.Supp.
at 689, n.5.
157
Id.
158
R.C. at 689, n.5.
152
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neglected children who had brought the suit never had standing, and because there had been a
significant change in the law upon which the consent decree had been premised.159
After participating in oral arguments, Pryor told reporters that he wanted to do away with
the state’s settlement, and was not necessarily concerned about whether his actions protected
children: “It matters not to me whether or not [they do]. My job is to make sure the state of
Alabama isn’t run by [a] federal court. My job isn’t to come here and help children.”160
Judge Ira Dement rejected both of Pryor’s arguments, and criticized the state for not
meeting the needs of the children:
Principles of federalism normally dictate that federal courts give states wide
latitude to operate their public institutions…However, when a state refuses to
adopt and maintain minimal constitutional, federal statutory and common-law
standards in its public institutions, the state forces federal
involvement…Accordingly, the Court will not hesitate to use any and all
measures necessary to insure Alabama’s compliance with the consent
decree…Among the sanctions that the Court will consider if defendant fails to
rapidly make all reasonable efforts to come into compliance are: civil fines,
receivership and/or judicially-ordered financing. While the Court does not desire
to take such drastic steps, the Court will not back away from its responsibility to
the Constitution and to the abused and neglected children of Alabama.161
Ethics
Pryor’s record raises serious questions of integrity and political independence that are
essential to a federal appellate judge. As one of the founders of the Republican Attorney
Generals Association (RAGA), Pryor helped to create a system whereby Republican attorneys
general solicited campaign contributions from the same corporations they were obligated to
regulate. There are also suggestions that Pryor may have improperly revealed confidential legal
strategy information to the defendants in the states’ tobacco litigation.
159
Id. at 689. The case to which Pryor was referring was Suter v. Artist M., 503 U.S. 347 (1992), where the
Supreme Court held that no private cause of action could be maintained under the Adoption Assistance and Child
Welfare Act. Id. at 699.
160
Robin DeMonia, “Pryor: Only Legal Concerns: Says He Can’t Judge if Welfare Settlement Helped Children,”
BIRMINGHAM NEWS, May 7, 1997. After being asked about this offensive statement, Pryor stated that what he
had meant to say was that the state’s social workers were charged with protecting children, and, as attorney general,
it is was his duty to protect the social workers’ ability to do so. Kelly Greene, “Bill Pryor Hopes to Ride Court
Crusade to the Top,” WALL STREET JOURNAL, May 21, 1997.
161
Id. at 704, 705 n.18.
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Republican Attorneys General Association (RAGA). In 1999, Pryor helped found the
Republican Attorneys General Association (RAGA).162 Pryor said that he helped form this
partisan organization based on his concerns about the dwindling number of Republican attorneys
general and the public-private lawyer alliance in the tobacco litigation: “Two years ago, I warned
that the lawsuits filed by my fellow state attorneys general against the tobacco industry
threatened the entire business community. To curb such `lawsuit abuse,’ the business
community must be heavily engaged in the election process as it affects legal and judicial
offices.”163
RAGA solicits funds from corporations that may be the subject of state investigations and
does not identify its donors.164 Press reports indicate that RAGA received contributions in 1999
from Microsoft, Ameritech, and Aetna, corporations that either were embroiled in, or were
seeking to prevent, lawsuits by states.165 Despite suggestions from both Democrat and
Republican attorneys general that accepting these contributions and refusing to identify donors
put attorneys general in an ethically troubling position, Pryor said: “I am proud to support
[RAGA], and it does not create a conflict of interest.”166 Upon being asked for a copy of the list
of corporate contributions to RAGA, Pryor said: “I don’t want corporations to be punished and
targeted by trial lawyers. The law does not require [disclosure]. Should we do more than the
George Lardner, Jr. and Susan Schmidt, “GOP Attorneys General Solicit Large Contributions from Corporations
that are Embroiled in Lawsuits,” WASHINGTON POST, March 30, 2000. When the group was initially founded in
1999, Pryor served as its Treasurer.
163
Id. See also Andrew Wheat, “Attorneys General for Sale?,” MULTINATIONAL MONITOR, June 1, 2001. In a
speech before the American Shooting Sports Council, Pryor again alluded to the “public-private lawyer alliance” in
the states’ suits against the gun and tobacco industries when he said: “This dangerous marriage of the tort bar and
governmental power must be severed soon before it further weakens what remains of limited government, the rule of
law, and respect for individual responsibility in this Nation.” Bill Pryor, “The Smoking Gun” – The Next Case of
Lawsuit Abuse,” Address to the American Shooting Sports Council at their Annual Convention, Feb. 1, 1999.
164
Contributions to RAGA are considered legal “soft money” donations to the Republican National Committee.
The RNC, in turn, funnels these contributions to the Republican National State Elections Committee. The donations
are then credited internally to RAGA.
165
George Lardner, Jr. and Susan Schmidt, “GOP Attorneys General Solicit Large Contributions from Corporations
that are Embroiled in Lawsuits,” WASHINGTON POST, March 30, 2000. Microsoft, which at that time was being
sued by 19 states who had joined a Department of Justice antitrust lawsuit, contributed $10,000 to RAGA in 1999,
according to its company’s spokesman. Ameritech, which was being investigated by state officials, contributed
$35,000, according to a company representative. Aetna allegedly gave $10,000 to the RNC’s soft money account on
July 26, 1999, right around the time of RAGA’s first fund-raising drive, but it is unclear whether that money had
been designated for RAGA. Id. A 2001 AP news article reported that a company spokesperson for SBC
Communications, which through its acquisition of Ameritech gained control of one-third of the nation’s phone
lines, acknowledged that the company contributed $35,000 to RAGA. See Robert Tanner, “Amid Growing Power,
State Attorneys General Face Test at Elections,” AP, June 4, 2001; see also “Montgomery Drops Fundraising Ties,”
STATE NET CAPITOL JOURNAL (OH), April 7, 2000. According to a 2002 press report, the National Rifle
Association (who sponsored a skeet shooting event at a 2000 winter RAGA meeting in Texas), DuPont, and Arthur
Andersen LLC also contributed to RAGA. See Ron Williams, “Brady Headed Funny-Money Group,” THE NEWS
JOURNAL (DELAWARE), Oct. 4, 2002.
http://www.delawareonline.com/newsjournal/opinion/williams/10042002.html; see also Robert Tanner, “Amid
Growing Power, State Attorneys General Face Test at Elections,” AP, June 4, 2001.
166
Id.
162
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law requires? I don’t really think so. The last thing I want to do is to try to make the businesses
that support us a target for trial lawyers.”167
Contrary to Pryor’s assertion, however, RAGA’s solicitation of contributions from the
corporations the state attorneys general regulate does create a clear potential conflict of interest.
Rule 1.7(b) of the Alabama Rules of Professional Conduct expressly provides, in relevant part:
“A lawyer shall not represent a client if the representation of that client may be materially limited
. . . by the lawyer’s own interests.”168 According to the comment to the rule, the critical question
is whether the conflict “will materially interfere with the lawyer’s independent professional
judgment in considering alternatives or foreclose courses of action that reasonably should be
pursued on behalf of the client.”169 When RAGA members solicit or accept contributions from
corporations that are the subjects of investigations or enforcement actions, they create a direct
conflict between the “lawyer’s own interest”—campaign contributions—and the interests of his
or her client, the state. The desire to raise soft money contributions may well “materially
interfere with the [attorney general’s] independent professional judgment” about the course of
action to pursue on behalf of the state in any proceedings against the contributor.
A number of Republican attorneys general have been critical of RAGA. Mike Fisher,
Pennsylvania’s Republican Attorney General said that he chose not to join RAGA because “I am
a Republican and I try to keep politics out of my business as attorney general.” Grant Woods, a
former Republican attorney general of Arizona, at a conference of Republican attorneys general,
advised the other attorneys general not to get involved with RAGA: “We’re a family, and
families can disagree, but don’t [join].”170 Ohio Attorney General Betty Montgomery, after
initially joining RAGA in 1999, dropped out in the beginning of 2000 because she was
“uncomfortable with the time it was taking and the national fund raising,” which in
Montgomery’s mind “raised some questions about who [RAGA was] raising money from.”171
Georgetown professor Roy Schotland, an election law specialist, was also critical of RAGA’s
fundraising scheme, comparing it to money laundering.172
Mississippi Attorney General Mike Moore, a Democrat, was also critical of Pryor’s
motives in founding RAGA: “Pryor started RAGA. That’s the biggest mistake that happened to
AGs in this country. For the last four years, they’ve raised money from big business to keep
themselves in office. They hold these big fancy meetings. They say, `You can come and have a
meeting with the AGs. You can have personal access. We’ll give you a few hours with the
AGs,’ they say. I just think it is wrong. There have been efforts to form Democratic AG groups,
Eric Fleischauer, “AG Pryor Refuses to List Republicans’ Corporate Donors,” THE DECATUR DAILY, Oct.
29, 2002.
168
Rule 1.7 of the ABA Model Rules of Professional Conduct is similar.
169
Comment, Rule 1.7, Alabama Rules of Professional Conduct.
170
George Lardner, Jr. and Susan Schmidt, “GOP Attorneys General Solicit Large Contributions from Corporations
that are Embroiled in Lawsuits,” WASHINGTON POST, March 30, 2000.
171
“Montgomery Drops Fundraising Ties,” STATE NET CAPITOL JOURNAL (OH), April 7, 2000.
172
Andrew Wheat, “Attorneys General for Sale?,” MULTINATIONAL MONITOR, June 1, 2001.
167
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and I’m opposed to those too. AGs have to be independent. It’s important that you not be
bought and paid for. It’s just wrong.”173
Because RAGA does not disclose its contributors, it is impossible to determine for certain
whether any solicitation by Pryor violated his ethical obligations to the state of Alabama. He
should be questioned closely regarding the list of RAGA donors, his role in soliciting those
contributions, and whether any of the contributors were the subject of a pending investigation or
enforcement action by the Alabama Attorney General’s office.
Similar questions should also be asked about Pryor’s solicitation of campaign
contributions for his own re-election campaigns. Were his actions on behalf of the citizens of
Alabama compromised in any way by his desire to finance his re-election?
Tobacco Litigation. As discussed above, during the initial stages of the tobacco
litigation, Pryor was attending confidential strategy meetings with other state attorneys general,
and, at the same time, allegedly communicating with tobacco industry officials. Mississippi
Attorney General Mike Moore has expressed his suspicions that Pryor may have leaked elements
of the states’ legal strategy to the tobacco company defendants.174 If so, this would also
constitute a serious breach of Pryor’s professional obligations.
The state attorneys general who were preparing their suit against the tobacco companies
shared a common interest in obtaining redress for their states for Medicaid expenses incurred as
a result of smoking-related illness. They were meeting, apparently in confidence, to discuss
legal strategy and were likely exchanging attorney work-product and, perhaps, confidential
attorney-client communications. Under such circumstances, Pryor, as well as the other attorneys
general, would have been under a fiduciary obligation not to disclose those confidences or to use
them against the interests of the other plaintiff states.175 Revealing confidential legal strategy to
the tobacco defendants would constitute a most serious breach of that fiduciary obligation. In
this area as well, Senators must question Pryor closely about his actions.
Eric Fleischauer, “Pryor Called a Tobacco Sellout,” THE DECATUR DAILY, Oct. 30, 2002. Moore’s warnings
were not heeded, and in mid-2002, the Democratic party set up a similar organization (DAGA) designed to solicit
contributions for the re-election of incumbent Democratic attorneys general. By contrast, RAGA was formed to
make Republican attorneys general competitive in elections for opens seats or in races against Democratic
incumbent attorneys general. Apparently, DAGA was formed as a defense mechanism to the aggressive efforts of
RAGA. See Alan Greenblatt, “Where Campaign Money Flows,” GOVERNING MAGAZINE, Nov. 1, 2002.
174
“I know that Bill met with tobacco lobbyists. Whether it was a surreptitious as sneaking notes to the other side, I
don’t know.” Eric Fleischauer, “Pryor Called a Tobacco Sellout,” THE DECATUR DAILY, Oct. 30, 2002.
175
See Formal Opinion 95-395, Obligations of a Lawyer Who Formerly Represented a Client in Connection With a
Joint Defense Consortium, ABA STANDING COMMITTEE ON ETHICS AND PROFESSIONAL
RESPONSIBILITY (July 14, 1995); see also, section 132, ALI Restatement of the Law, Third, The Law Governing
Lawyers (2000), comment g(ii) and Reporter’s Note.
173
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Judicial Temperament
In investigating judicial temperament, the ABA Standing Committee on the Federal
Judiciary must consider a nominee's “compassion, decisiveness, open-mindedness, courtesy,
patience, freedom from bias and commitment to equal justice under the law.”176 There is much
evidence that Pryor’s ideological extremism and partisanship render him temperamentally unfit
for the bench.
Pryor has said that he “became a lawyer because [he] wanted to fight the ACLU – the
Anti-American Civil Liberties Union.”177 While in private practice, Pryor’s commitment to the
Republican Party apparently interfered with his representation of clients. Valstene Stabler, a
partner at the Birmingham firm of Walston, Stabler, Wells, Anderson & Baines, described Pryor
as being “so interested in what the Republican Party was doing in the state, he was having
trouble devoting attention to his private clients.”178
Since becoming Alabama’s Attorney General, Pryor has regularly interjected himself and
the state of Alabama into cases in which they do not have any real interest. He has filed scores
of amicus curiae briefs in cases far removed from Alabama. His involvement in these cases—
and the positions he advances—appear to be motivated not by his duty to protect the interests of
the citizens of Alabama, but instead by his desire to advance his own conservative agenda on
issues near and dear to his heart, such as states’ rights, the death penalty, the separation of church
and state, and the Second Amendment.
Perhaps the quintessential example of Pryor’s result-oriented overreaching was the case
that decided the last presidential election, Bush v. Gore. When the outcome of the election was
put before the Supreme Court, Pryor was the only state attorney general to file an amicus brief in
support of George W. Bush. Pryor’s attempt to articulate a rationale for Alabama’s participation
in the case was almost laughable, concerning a past controversy over the method for counting
valid absentee ballots. Nevertheless Pryor, who had served as the Alabama co-chairman of the
Bush-Cheney presidential campaign, filed the brief, which argued that the Supreme Court should
overturn the Florida Supreme Court decision refusing to block the manual recount of ballots.179
An attorney who practiced regularly in Alabama noticed an irony in Pryor’s position: “One
might think that a true believer in what is now called `federalism’ would likely take the position
that election-law matters should be left up to the states rather than to federal judges.”180
The ABA Standing Committee on Federal Judiciary: “What it is and How it Works.” This document can be
found at http://www.abanet.org/scfedjud/backgrounder.html.
177
Kelly Greene, “Bill Pryor Hopes to Ride Court Crusade to the Top,” WALL STREET JOURNAL, May 21,
1997.
178
Kelly Greene, “Bill Pryor Hopes to Ride Court Crusade to the Top,” WALL STREET JOURNAL, May 21,
1997.
179
Brief of the State of Alabama as Amicus Curiae Supporting Reversal, Bush v. Gore, 2000 U.S. Briefs 949.
180
See Mary Orndorff, “Federalism, Key Pryor Issue: Stance May Decide Appellate Court Post,” BIRMINGHAM
NEWS, April 27, 2003.
176
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Pryor apparently views his current position as a bully pulpit from which to promote his
ideological agenda. As demonstrated repeatedly throughout this report, Pryor has no qualms
about offering up intemperate remarks regarding judicial decisions with which he disagrees and
the justices who render them. He seems most unwilling to abide by binding precedent. As the
Washington Post noted in its editorial opposing his nomination:
Mr. Pryor’s speeches display a disturbingly politicized view of the role of the
courts. He has suggested that impeachment is an appropriate remedy for judges
who “repeatedly and recklessly . . . overturn popular will and . . . rewrite
constitutional law.” And he talks publicly about judging in the vulgarly political
terms of the current judicial culture war. He concluded one speech, for example,
with the following prayer: “Please, God, no more Souters” – a reference to the
betrayal many conservatives feel at the honorable career of Supreme Court
Justice David H. Souter.181
Nothing in William Pryor’s record suggests that he possesses the compassion, openmindedness, freedom from bias, or commitment to equal justice under the law required for
confirmation to a seat on one of the nation’s second highest courts.
Conclusion
Attorney General Bill Pryor is one of the most extreme right-wing ideologues President
Bush has nominated to the federal judiciary. Throughout his career, he has aggressively pursued
his ideological agenda in almost every area of the law. He is a political partisan who has
engaged in ethically troubling behavior and an ideological extremist who is temperamentally
unfit for the bench. If confirmed to the Eleventh Circuit Court of Appeals, we justifiably fear
that he would not be guided by precedent and could not be fair and impartial. The Alliance for
Justice strongly opposes his nomination.
181
“Unfit to Judge,” WASHINGTON POST, April 11, 2003.
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