[Senate Hearing 108-264]
[From the U.S. Government Publishing Office]
S. Hrg. 108-264
CONFIRMATION HEARING ON THE NOMINATIONS OF WILLIAM H. PRYOR, JR. TO BE
CIRCUIT JUDGE FOR THE ELEVENTH CIRCUIT AND DIANE M. STUART TO BE
DIRECTOR, VIOLENCE AGAINST WOMEN OFFICE, DEPARTMENT OF JUSTICE
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
__________
JUNE 11, 2003
__________
Serial No. J-108-15
__________
Printed for the use of the Committee on the Judiciary
91-200 U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2003
____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
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COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas JOHN EDWARDS, North Carolina
Bruce Artim, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Chambliss, Hon. Saxby, a U.S. Senator from the State of Georgia.. 79
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 7
prepared statement on William H. Pryor, June 11, 2003........ 318
prepared statement on William H. Pryor, July 25, 2003........ 321
prepared statement on Diane Stuart, June 11, 2003............ 326
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa,
prepared statement............................................. 307
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 345
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York........................................................... 10
PRESENTERS
Bonner, Hon. Jo, a Representative in Congress from the State of
Alabama presenting William H. Pryor, Jr., Nominee to be Circuit
Judge for the Eleventh Circuit................................. 2
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama
presenting William H. Pryor, Jr., Nominee to be Circuit Judge
for the Eleventh Circuit....................................... 4
Shelby, Hon. Richard, a U.S. Senator from the State of Alabama
presenting William H. Pryor, Jr., Nominee to be Circuit Judge
for the Eleventh Circuit....................................... 1
STATEMENTS OF THE NOMINEES
Pryor, William H., Jr., Nominee to be Circuit Judge for the
Eleventh Circuit............................................... 17
Questionnaire................................................ 18
Stuart, Diane M., Nominee to be Director, Violence Against Women
Office, Department of Justice.................................. 115
Questionnaire................................................ 125
QUESTIONS AND ANSWERS
Responses of William H. Pryor, Jr. to questions submitted by
Senator Biden.................................................. 149
Responses of William H. Pryor, Jr. to questions submitted by
Senator Durbin................................................. 157
Responses of William H. Pryor, Jr. to questions submitted by
Senator Edwards................................................ 173
Responses of William H. Pryor, Jr. to questions submitted by
Senator Feingold............................................... 180
Responses of William H. Pryor, Jr. to questions submitted by
Senator Leahy.................................................. 189
Responses of William H. Pryor, Jr. to questions submitted by
Senator Kennedy................................................ 204
Responses of William H. Pryor, Jr. to questions submitted by
Senator Schumer................................................ 225
Responses of Diane Stuart to questions submitted by Senator Biden 231
Responses of Diane Stuart to questions submitted by Senator
Feingold....................................................... 242
Responses of Diane Stuart to questions submitted by Senator
Daschle........................................................ 246
Responses of Diane Stuart to questions submitted by Senator Leahy 264
SUBMISSIONS FOR THE RECORD
Alabama Association of Chiefs of Police, Arthur K. Bourne,
President, Marion, Alabama, letter............................. 269
Atlanta Journal-Constitution:
May 6, 2003, Quin Hillyer, article........................... 271
December 11, 1997, editorial................................. 273
Baker, Thurbert E., Attorney General, Department of Law, State of
Georgia, Atlanta, Georgia, letter.............................. 275
Baxley, William J., Baxley, Dillard, Dauphin and McKnight,
Attorneys at Law, Birmingham, Alabama, letter.................. 277
Beasley, Jere L., Beasley, Allen, Crow, Methvin, Portis and
Miles, P.C., Attorneys at Law, Montgomery, Alabama, letter..... 278
Billingslea, Stephanie C., Assistant Attorney General,
Montgomery, Alabama, letter.................................... 279
Birmingham News, June 11, 2003, editorial........................ 281
Birmingham Post-Herald, April 12, 2003, articles................. 282
Brown, Sammie, Jr., Chief of Police, Prichard, Police Department,
Prichard, Alabama, letter...................................... 283
Butts, Terry L., Cervera, Ralph and Butts, Attorneys at Law,
Troy, Alabama, letter.......................................... 284
Cobb, Sue Bell, Judge, Court of Criminal Appeals, State of
Alabama, Montgomery, Alabama, letter........................... 287
Cochran, Samuel M., Chief of Police, Mobile Police Department,
Mobile, Alabama, letter........................................ 289
Colson, Charles W., Prison Fellowship Ministries, Washington,
D.C., letter................................................... 290
Cooper, Patrick C., Maynard, Cooper and Gale, P.C., Attorneys at
Law, Birmingham, Alabama, letter............................... 291
cw.ua.edu., Our View, April 18, 2003, article.................... 293
Crist, Charlie, Attorney General, State of Florida, letter....... 294
Cunningham, Robert R., Jr., Cunningham, Bounds, Yance, Crowder
and Brown, L.L.C., Mobile, Alabama, letter..................... 295
Davis, Hon. Artur, a Representative in Congress from the State of
Alabama, letter................................................ 297
Drake, Russell Jackson, Whatley Drake, Birmingham, Alabama,
letter......................................................... 298
Earley, Mark L., President, Prison Fellowship Ministries,
Washington, D.C. letter........................................ 299
Fancher, Eric M., District Judge, Tenth Judicial Circuit of
Alabama, Bessemer, Alabama, letter............................. 300
Flanagan, Newman, Executive Director, National District Attorneys
Association, Alexandria, Virginia, letter...................... 301
Franklin, Bill, Sheriff, Elmore County Sheriff's Department,
Wetumpka, Alabama, letter...................................... 302
Fraternal Order of Police, Chuck Canterbury, National President,
Grand Lodge, Washington, D.C., letter.......................... 303
Gamache, Denise, Associate Director, Battered Women's Justice
Project, Minnesota Program Development, Inc., Duluth,
Minnesota, letter.............................................. 304
Grant, Gerrilyn V., Assistant Attorney General, State of Alabama,
Office of the Attorney General, Montgomery, Alabama, letter.... 306
Griffin, Gregory O., Sr., Chief Counsel, State of Alabama Board
of Pardons and Paroles, Montgomery, Alabama, letter............ 316
Griffin, Greg, Montgomery Advertiser, Montgomery, Alabama, letter
to the editor.................................................. 317
Hayes, James, Etowah County Sheriff, Gadsden, Alabama, letter.... 327
Hillman, Randall I., Executive Director, Alabama District
Attorneys Association, Montgomery, Alabama, letter............. 328
Hinton, Jack B., Jr., Gidiere, Hinton & Herndon, Attorneys at
Law, Montgomery, Alabama, letter............................... 330
Holmes, Hon. Alvin, State of Alabama House of Representatives,
Montgomery, Alabama, letter and attachments.................... 332
Ivey, Wyndall A., Capell and Howard, P.C., Attorneys at Law,
Montgomery, Alabama, letter.................................... 337
Johnson, James W. ``Herbie'', Sheriff, Autauga County,
Prattville, Alabama, letter.................................... 338
Joint letter of Dominica Hyde, RSM, Alice Lovett, RSM, Suzanne
Gwynn, RSM, Cecilia Street, and Magdala Thompson, RSM, Mobile,
Alabama........................................................ 339
Jones, G. Douglas, Whatley Drake, Birmingham, Alabama, letter.... 340
Joseph, Anthony A., Johnston Barton Proctor and Powell, L.L.P.,
Law Office, Birmingham, Alabama, letter........................ 342
Krebs, Thomas L., Haskell Slaughter Young & Rediker, LLC,
Birmingham, Alabama, letter.................................... 344
Levine, Herc, Birmingham, Alabama, letter and attachment......... 351
Lieberman, Bruce M., Montgomery, Alabama, letter, May 23, 2003... 353
Manuel, Jeff, Public Safety Director, Police Department,
Demopolis, Alabama, letter..................................... 354
McNair, Chris, Chris McNair Studios, Birmingham, Alabama, letter. 355
Mixon, Bryant, Sheriff, Dale County, Ozark, Alabama, letter...... 357
Mobile Register, May 21, 2003, editorial......................... 358
Montgomery Advertiser, June 11, 2003, editorial.................. 359
National Council of Juvenile and Family Court Judges, Hon.
Leonard P. Edwards, President, Reno, Nevada, letter............ 361
Nolan, Pat, President, Justice Fellowship, Washington, D.C.,
letter......................................................... 362
Penelope House Family Violence Center, Board of Directors,
Kathryn Coumanis, Executive Director, Mobile, Alabama, letter.. 363
Reed, Joe L., Chairman, Alabama Democratic Conference,
Montgomery, Alabama, letter.................................... 364
Rediker, J.Michael, Haskell Slaughter Young and Rediker, LLC,
Birmingham, Alabama, letter.................................... 365
Sadie, Edna, Montgomery, Alabama, letter......................... 367
Seroyer, Jesse, Jr., Marshal, Middle District of Alabama,
Montgomery, Alabama, letter.................................... 368
Shehane, Miriam, Executive Director, Victims of Crime and
Leniency, Montgomery, Alabama, letter.......................... 369
Shelby, Hon. Richard, a U.S. Senator from the State of Alabama,
prepared statement............................................. 370
Singleton, Rick L., Chief of Police, Florence Police Department,
Florence, Alabama, letter...................................... 371
Smith, Grover W., Sheriff, Escambia County, Brewton, Alabama,
letter......................................................... 372
Smoot, Shelia, Commissioner, Jefferson County Commission,
Birmingham, Alabama, letter.................................... 373
Tarver, Courtney W., Montgomery, Alabama, letter................. 374
Taylor, Bill, U.S. Marshal, Southern District of Alabama, Mobile,
Alabama, letter................................................ 376
Taylor, ``Bill'' William, Jackson, Alabama, letter............... 377
Tuscaloosa News, Tommy Stevenson, April 13, 2003, article........ 378
Utah Domestic Violence Advisory Council, Ned Searle, Chair, Salt
Lake City, Utah, letter........................................ 380
Wade, D. Allan, Chief of Police, Pelham, Alabama, letter......... 381
Wall Street Journal, Douglas W. Kmiec, June 10, 2003, article.... 382
Walls, J. Scott, Chief of Police, Guntersville, Alabama, letter.. 384
Wilson, John H., Chief of Police, Montgomery, Alabama, letter.... 385
Women's Fund of Greater Birmingham, Dianne Mooney, Allocations
Chair, Birmingham, Alabama, letter............................. 386
CONFIRMATION HEARING ON THE NOMINATIONS OF WILLIAM H. PRYOR, JR. TO BE
CIRCUIT JUDGE FOR THE ELEVENTH CIRCUIT AND DIANE M. STUART TO BE
DIRECTOR, VIOLENCE AGAINST WOMEN OFFICE, DEPARTMENT OF JUSTICE
----------
WEDNESDAY, JUNE 11, 2003
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:38 a.m., in
room G50, Dirksen Senate Office Building, Hon. Orrin G. Hatch,
Chairman of the Committee, presiding.
Present: Senators Hatch, Specter, Kyl, Sessions, Chambliss,
Cornyn, Leahy, Kennedy, Kohl, Feinstein, Feingold, Schumer,
Durbin, and Edwards.
Chairman Hatch. We are happy to begin today. We have two
stellar nominees on the agenda today: Bill Pryor, who has been
nominated for the Eleventh Circuit, and Diane Stuart, who has
been nominated to be Director of the Violence Against Women
Office in the Department of Justice.
We also have several gentlemen who are here to introduce
Mr. Pryor, and I understand that one of them, Congressman Jo
Bonner, has to leave for another appointment. So if Senator
Schumer agrees, I would like for us to postpone our opening
statements until after the first panel of witnesses testifies.
Senator Schumer. Perfectly fine with me, Mr. Chairman.
Chairman Hatch. I knew it would be.
In addition, I will postpone my own introduction of Ms.
Stuart, whom I am proud to call a fellow Utahn, just before her
testimony.
So we will begin with you, Senator Shelby, and then we will
go to Congressman Bonner.
PRESENTATION OF WILLIAM H. PRYOR, JR., NOMINEE TO BE CIRCUIT
JUDGE FOR THE ELEVENTH CIRCUIT, BY HON. RICHARD SHELBY, A U.S.
SENATOR FROM THE STATE OF ALABAMA
Senator Shelby. Thank you. Mr. Chairman, thank you very
much for holding this hearing. I appreciate very much the
opportunity to appear before the Judiciary Committee today to
introduce Bill Pryor, the Attorney General of the State of
Alabama and the President's nominee for the United States Court
of Appeals, Mr. Chairman, for the Eleventh Circuit, as you just
mentioned.
I have known Bill Pryor for many years, and I have the
highest regard for his intellect and, more than that, his
integrity. He is an extraordinarily skilled attorney with a
prestigious record of trying civil and criminal cases in both
the State and Federal courts. He has also argued several cases
before the United States Supreme Court and the Supreme Court of
our own State of Alabama.
As the Attorney General of the State of Alabama, Bill Pryor
has established a reputation as a principled and effective
legal advocate for the State of Alabama and has distinguished
himself as a leader on many important State and Federal issues.
First and foremost, Mr. Chairman, Bill is a man of the law.
Whether as a prosecutor, a defense attorney, or the Attorney
General of the State of Alabama, he understands and respects
the constitutional role of the judiciary and specifically the
role of the Federal courts in our legal system. Indeed, I have
no doubt that he will make an exceptional Federal judge on the
Eleventh Circuit Court of Appeals because of the humility and
the gravity that he would bring to the bench.
I am also confident that he would serve honorably and apply
the law with impartiality and fairness, which I believe is
required of a judge.
Again, Mr. Chairman and members of the Committee, I thank
you for holding today's hearing on Bill Pryor's nomination. I
am hopeful that the Judiciary Committee will favorably report
this nomination to the full Senate in the near future, and I
support this nomination without any reservation.
Chairman Hatch. Well, thank you so much.
Senator Shelby. And I ask that my complete statement be
made part of the record, Mr. Chairman.
Chairman Hatch. Without objection, it will be, and we are
grateful you took time out of your busy schedule to be here.
Your recommendation means a lot to this Committee.
Senator Shelby. Thank you.
[The prepared statement of Senator Shelby appears as a
submission for the record.]
Chairman Hatch. We are going to turn to Senator Sessions. I
didn't see Senator Sessions there, and we will take your
statement, Senator.
Senator Sessions. Well, Mr. Chairman, I would be pleased if
Congressman Bonner, who may have to leave, could go next.
Chairman Hatch. That is very nice of you.
We will turn to you, Congressman Bonner.
PRESENTATION OF WILLIAM H. PRYOR, JR., NOMINEE TO BE CIRCUIT
JUDGE FOR THE ELEVENTH CIRCUIT, BY HON. JO BONNER, A
REPRESENTATIVE IN CONGRESS FROM THE STATE OF ALABAMA
Representative Bonner. Chairman Hatch, Senator Schumer, and
distinguished members of the Senate Judiciary Committee, it is
indeed a privilege for me to appear before you today for the
sole purpose of introducing a man I believe to be one of the
finest judicial nominees in recent history: Alabama's Attorney
General William H. Pryor.
It is without reservation that I fully support Attorney
General Pryor's nomination and ask that he receive bipartisan
support from this Committee and that his nomination be granted
a vote by the full Senate.
Mr. Chairman, I could not be more pleased with President
Bush's choice for the Eleventh Circuit Court of Appeals. Bill
Pryor is not only a good man, he is also an outstanding
judicial nominee whose diverse legal experience and extensive
qualifications illustrate his ability and his desire to serve
from the bench.
Bill and I are both from Mobile, Alabama, and I have the
honor of serving as his Congressman from the 1st District, just
as he serves as my State Attorney General.
When Bill Pryor took office on January 2, 1997, he was the
youngest Attorney General in the United States at the time.
During his most recent campaign for re-election, the people of
Alabama resoundingly indicated their approval of Bill's work,
as he garnered 59 percent of the vote, the highest percentage
of any statewide official on the ballot.
Throughout the years, I have followed Bill's career in the
Attorney General's office with pride, and I am especially
pleased to note his efforts to reform Alabama's Sentencing
Guidelines and to step up the prosecution of white-collar
crime.
Bill Pryor believes that white-collar criminals should be
apprehended and prosecuted to the same extent as all other
criminals, and he firmly believes that racial disparity in
sentencing is unacceptable. Equal crimes should receive equal
punishment.
Bill Pryor has led the fight on civil rights issues in
Alabama. As Alabama's Attorney General, Bill worked with the
U.S. Attorney's office to prosecute the Ku Klux Klan murderers
Thomas Blanton and Bobby Frank Cherry for the 1963 bombing of
the 16th Street Baptist Church that tragically killed four
little girls. Moreover, Bill personally argued before the
Alabama Court of Criminal Appeals to uphold the Blanton
conviction.
He authored the Alabama legislation that established cross
burning as a felony, and he led the fight to abolish the
Alabama Constitution's antiquated ban on interracial marriages.
Bill Pryor has gone above and beyond the duties of his
office to improve the State of Alabama. As Attorney General, he
started Mentor Alabama, a program to recruit positive adult
role models for thousands of at-risk youth, 99 percent of which
are African Americans. Throughout that program, Bill Pryor has
served every week as a reading tutor for the children in the
Montgomery, Alabama, public schools.
I could elaborate for hours on Bill's considerable record,
but instead I believe it is more appropriate to defer to some
of the people in our State that know Bill Pryor, that have
worked with Bill Pryor, and that respect Bill Pryor.
Mr. Chairman, I have with me today a letter written by
State Representative Alvin Holmes, one of Alabama's most
distinguished civil rights leaders. Mr. Holmes has served in
the Alabama House of Representatives for 28 years and has led
the civil rights battle for African Americans, women,
homosexuals, and other minorities. Here is what he has to say
about Bill Pryor's nomination:
``As one of the key civil rights leaders in Alabama who has
participated in basically every major civil rights
demonstration in America, who has been arrested for civil
rights causes on many occasions, as one who was a field staff
member for Dr. Martin Luther King's SCLC, as one who has been
brutally beaten by vicious police officers for participating in
civil rights marches and demonstrations, as one who has had
crosses burned in his front yard by the KKK and other hate
groups, as one who has lived under constant threats day in and
day out because of his stand fighting for the rights of blacks
and other minorities, I request your swift confirmation of Bill
Pryor to the Eleventh Circuit because of his constant efforts
to help the causes of blacks in Alabama.''
Mr. Chairman, it is the people of Alabama, the people that
have served with him and have worked with him that know Bill
Pryor the best, the same people I am privileged to be
representing here today. They know his ability, his integrity,
and his commitment to do the right thing, regardless of the
pressures that some political groups--even members of his own
political party--have tried to use on him.
Bill Pryor is a friend and champion of the rights of all
people, a principled man who has used his position as Alabama's
Attorney General to provide equality in sentencing, protect the
common man, serve justice, and work for fairness and equality
in the law. That is why I stand beside the people of my
district who are so proud of their native son, and beside men
like Representative Alvin Holmes and so many others, in
recommending to this Committee that the nomination of William
H. Pryor to the Eleventh Circuit Court of Appeals be supported
from both sides of the aisle.
I thank the Chairman.
Chairman Hatch. Thank you, Congressman Bonner. That is a
very impressive and powerful statement on behalf of General
Pryor. We are grateful to have you here and grateful that you
took the time to come over.
Mr. Bonner. Thank you, sir.
Chairman Hatch. So we will let you go at this time. I know
that you have a very tough schedule. So thank you.
We will turn to you, Senator Sessions.
PRESENTATION OF WILLIAM H. PRYOR, JR., NOMINEE TO BE CIRCUIT
JUDGE FOR THE ELEVENTH CIRCUIT, BY HON. JEFF SESSIONS, A U.S.
SENATOR FROM THE STATE OF ALABAMA
Senator Sessions. Thank you, Mr. Chairman. I want to thank
Senator Shelby and Congressman Bonner and would note for the
record that Representative Alvin Holmes, who is one of the most
outspoken advocates for civil rights in the Alabama
Legislature, wanted to be here and would have been here today,
but the Legislature is in session today, as I understand it.
Let me deal with--
Chairman Hatch. Senator Shelby, if you need to go, too,
we--
Senator Shelby. I am going to wait on the statement out of
respect for my colleague.
Chairman Hatch. Okay. That is fine.
Senator Shelby. And also Bill Pryor. Thank you.
Senator Sessions. Mr. Chairman, a lot of things have been
said here. We know that some advocacy groups have picked
another target. They have picked Bill Pryor to be a nominee
that they want to complain about. Some have suggested that he
is an activist. I would say he is an active Attorney General,
constantly and vigorously working to promote the legitimate and
just interests of the State of Alabama and her people. But he
is absolutely not an activist in the way that his opponents
have defined that term and the way, Mr. Chairman, that this
Senate has defined it in evaluating judicial nominees.
As Attorney General, he must be an advocate. He has proven
to be a great one. But even as Attorney General and even as an
advocate, he has consistently followed the laws courageously,
even when doing so brings him personal or political complaints
from his friends or others.
If members of this Committee would listen carefully to his
testimony and would evaluate his real record--not the trumped-
up charges that have been put out by out-of-the-mainstream
groups that have taken his positions out of context--I think
they would see something different.
Why would the leading African-American Democrats--like
Alabam Congressman Artur Davis, himself a Harvard graduate and
a lawyer and a former Assistant United States Attorney, like
Representative Joe Reed, Chairman of the Alabama Democratic
Conference, a member of the National Democratic Committee, one
of the most powerful political figures in the State for the
last 30 years, an individual who has taken the Federal
judiciary extremely seriously, who has always watched judicial
nominations and like Representative Alvin Holmes, whom I just
mentioned--why would they support Pryor? They support him
because he has not been as people have caricatured him. He has
been a champion for liberty and civil rights.
Much has changed in Alabama. We have more African-American
office holders today than any other State. Today, I understand,
marks the 40th anniversary of a sad day in which Governor
George Wallace stood in the schoolhouse door. But you must note
that Bill Pryor was not a part of that. First, he is just 41.
Secondly, his parents were John F. Kennedy Democrats. And when
he gave his inaugural speech after winning election as Attorney
General with 59 percent of the vote, he opened with these
words. This is very telling to me. This is what he led with:
``Equal under law today, equal under law tomorrow, equal under
law forever.''
Those words were a fitting conclusion to a period begun 40
years ago by a promise of segregation today, tomorrow, and
forever.
Bill is one of the good guys. He does the right thing. He
has frequently refused pleas from his Republican friends when
he thought the law did not support their position. For example,
they rightly believed that the legislative district lines hurt
their chances to have fair representation in the State
legislature. They filed a voting rights suit, arguing against
the majority-minority legislative districts.
Bill not only would not take their side, he courageously
led the case for the African-American position, losing at some
steps along the way, even with the U.S. Court of Appeals, but
eventually winning in the United States Supreme Court. That is
why Alvin Holmes and Joe Reed respect Bill Pryor.
Moreover, he has publicly and in legal briefs rejected the
position of the Governor of the State of Alabama--the Governor
who appointed him--on church-and-state issues. This is
courageous action under difficult political circumstances.
As to Roy Moore, the Chief Justice of the Alabama Supreme
Court, the fact is that Bill has defended his action of placing
a monument of the Ten Commandments in the Supreme Court, but he
would not agree to the way the Chief Justice wanted to argue
that case. He had a more restrictive and limited argument he
preferred to make, and eventually the Chief Justice had his own
lawyers to argue the case and gone forward in that way.
In fact, Bill Pryor did not support Chief Justice Moore in
the last election. Instead, he supported Justice Harold See in
a bruising Republican primary for the Chief Justice spot in
Alabama. It is clearly false to suggest he is some unthinking
tool of Chief Justice Moore or the Christian Right.
So far as I can see, the only legal position he has taken
as Attorney General on abortion, a practice that he abhors, has
been to direct the Alabama district attorneys to give a very
restrictive interpretation of Alabama's partial-birth abortion
law and to make clear he would vigorously prosecute anyone who
committed terrorist acts against abortion clinics.
While the controversy over school prayer was emotional and
the people of Alabama became confused as a result of the
Governor's stated positions, the Governor felt like coaches
ought to be able to lead their ball team in prayer. That was
the way he saw it. But Attorney General Pryor, as the State's
chief law enforcement officer, objected. He sent all schools
carefully drafted guidelines on what they could and could not
do based on the holdings of the United States Supreme Court.
His positions were far less expansive than the Governor's.
These were clear, practical guidelines and were praised by
many, including the Atlanta Journal Constitution. Indeed, the
Clinton Administration's Department of Education later adopted
guidelines almost identical to those written by Attorney
General Pryor.
There is no extremism here. He led the fight to win a
statewide vote to eliminate an old constitutional amendment
that prohibited interracial marriage. Not one single other
politician, certainly not a white politician in Alabama,
Republican or Democrat, was active in that struggle. He led
that fight, and the people of Alabama removed that stain on our
legal system.
The caricature that the attack groups have created of Bill
Pryor is just not true. It is false. He is a breath of fresh
air. He is a leader of the future, not the past. Everyone in
Alabama knows it. If my friends on this Committee will just
listen and review the evidence carefully, you will come to this
conclusion too. And he will be confirmed as he should be.
Mr. Chairman, thank you for your leadership. Senator
Schumer, we look forward to the hearing.
Chairman Hatch. Thank you, Senator. We appreciate both of
you Senators. That is high praise indeed to have you both here
for General Pryor, and I am sure he is very grateful to you, as
are we. So we appreciate the time you have taken out of your
busy schedules to be here.
Senator Sessions. Thank you, Mr. Chairman.
Chairman Hatch. Thanks so much.
Chairman Hatch. General Pryor, if we could have you step
forward? Please stand to be sworn. Do you affirm that the
testimony you are about to give before the Committee will be
the truth, the whole truth, and nothing but the truth?
Mr. Pryor. I do.
Chairman Hatch. Senator Schumer and I will make our opening
statements at this time, and then we will turn to you. Why
don't you sit in the middle if you could by the clock there.
Thank you.
Senator Schumer. Senator Hatch was saying get away from the
right side there and move to the middle of the--
[Laughter.]
Mr. Pryor. I am happy to do so, Senator.
OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM
THE STATE OF UTAH
Chairman Hatch. This side over here takes real offense at
things like that, I have to tell you.
I am pleased to welcome to the Judiciary Committee this
morning the Attorney General of Alabama, William Pryor, whom
President Bush has nominated to fill a judicial emergency on
the United States Court of Appeals for the Eleventh Circuit.
Now, in his last election, General Pryor garnered more than
59 percent of the vote, and if the letters of support for his
nomination are any indication, the majority of Alabama people
supporting him were not all Republicans. Let me share with you
some of the letters that prominent Democrats have written about
General Pryor.
Joe Reed, Chairman of the Alabama Democratic Conference,
which is the State party's African-American caucus, writes that
General Pryor ``will uphold the law without fear or favor. I
believe all races and colors will get a fair shake when their
cases come before him...I am a member of the Democratic
National Committee and, of course, General Pryor is a
Republican, but these are only party labels. I am persuaded
that in General Pryor's eyes, Justice has only one label--
Justice!''
Judge Sue Bell Cobb, who sits on the Alabama Court of
Criminal Appeals, stated, ``I write, not only as the only
statewide Democrat to be elected in 2000, not only as a member
of the Court which reviews the greatest portion of General
Pryor's work, but also as a child advocate who has labored
shoulder to shoulder with General Pryor in the political arena
on behalf of Alabama's children. It is for these reasons and
more that I am indeed honored to recommend General Pryor for
nomination to the Eleventh Circuit Court of Appeals.''
And Congressman Artur Davis encouraged President Bush to
nominate General Pryor, declaring his belief that Alabama will
be proud of his service.
Now, I will submit copies of these letters for the record,
along with copies of the other many letters from Democrats and
Republicans, men and women, and members of the African-
American, Jewish, and Christian communities who support Bill
Pryor's nomination.
Now, it is fundamental that a State Attorney General has
the obligation to represent and defend the laws and interests
of the State. General Pryor has fulfilled this responsibility I
think admirably by repeatedly defending the public fisc and the
laws and policies enacted by the Alabama Legislature. But one
of the reasons for the broad spectrum of support for General
Pryor is his demonstrated ability to set aside his personal
views and follow the law. As you will undoubtedly hear during
the course of this hearing, General Pryor is no shrinking
violet. He has been open and honest about his personal beliefs,
which is what voters expect from the people whom they elect to
represent them. Yet General Pryor has shown again and again
that when the law conflicts with his personal and political
beliefs, he follows the law.
For example, in 1997, the Alabama Legislature enacted a ban
on partial-birth abortion that could have been interpreted to
prohibit abortions before viability. General Pryor is avowedly
pro-life and has strongly criticized Roe v. Wade, so one might
very well have expected General Pryor to vigorously enforce the
statute. Instead, he instructed law enforcement officials to
enforce the law only insofar as it was consistent with the
Supreme Court's precedents of Casey and Stenberg v. Carhart,
despite pressure from many Republicans to enforce broader
language in the act.
Here is another example: I am sure that we will hear today
about General Pryor's call for modification or repeal of
Section 5 of the Voting Rights Act, which requires Department
of Justice preclearance. By the way, General Pryor is not alone
in his opinion of Section 5; the Democratic Attorney General of
Georgia, Thurbert Baker, has called Section 5 an
``extraordinary transgression of the normal prerogatives of the
States.'' Now, despite his opinion that Section 5 is flawed,
General Pryor successfully defended before the Supreme Court
several majority-minority voting districts approved under
Section 5 from a challenge by a group of white Alabama voters.
He also issued an opinion that the use of stickers to replace
one candidate's name with another on a ballot required
preclearance under Section 5 of the Voting Rights Act.
Yet another example involves General Pryor's interpretation
of the First Amendment's Establishment Clause. In an effort to
defeat challenges to school prayer and the display of the Ten
Commandments in the Alabama Supreme Court, both the Governor
and the Chief Justice urged General Pryor to argue that the
Bill of Rights does not apply to the States. General Pryor
refused, despite his own deeply held Catholic faith and
personal support for both of these issues.
And here is my final example, and there are many others,
but I will limit it to this: General Pryor supported the right
of teachers to serve as State legislators, despite intense
pressure from his own party, because he believed that the
Alabama Constitution allowed them to do so.
Now, these examples aptly illustrate why General Pryor's
nomination enjoys broad bipartisan support from persons like
former Democratic Alabama Attorney General Bill Baxley. He
observed of General Pryor, ``In every difficult decision he has
made, his actions were supported by his interpretation of the
law, without race, gender, age, political power, wealth,
community standing, or any other competing interest affecting
judgment.'' Mr. Baxley continued, ``I often disagree,
politically, with Bill Pryor. this does not prevent me from
making this recommendation because we need fair minded,
intelligent, industrious men and women, possessed of impeccable
integrity on the Eleventh Circuit. Bill Pryor has these
qualities in abundance... There is no better choice for this
vacancy.''
During the course of this hearing, we will hear many things
about Bill Pryor. We will hear many one-sided half-truths
perpetuated by the usual liberal interest groups who will stop
at nothing, it seems to me, to defeat President Bush's judicial
nominees. Now, I want to make sure that this hearing is about
fairness and about telling the full story of Bill Pryor's
record and service.
We will hear that General Pryor is a devout pro-life
Catholic who has criticized Roe v. Wade, but the rest of the
story is that many prominent Democrats, such as Justice Ruth
Bader Ginsburg and former Stanford Dean John Hart Ely, who are
pro-choice, have also criticized Roe without anyone questioning
their recognition of it as a binding Supreme Court precedent.
We will hear claims that General Pryor is against the
disabled and elderly, but the real story is that General Pryor
has done his duty as Attorney General to defend his State's
budget from costly lawsuits. Other State Attorneys General,
including respected Democrats like Bob Butterworth of Florida
and now Senator Mark Pryor of Arkansas, have taken the same
positions as General Pryor in defending their States. And while
the Supreme Court agreed with the Attorneys General in these
cases that the Eleventh Amendment protects States from monetary
damages in Federal court, these rulings did not affect--and
General Pryor did not seek to weaken--other important methods
of redressing discrimination, like actions for monetary damages
under State law, injunctive relief, or back pay.
We will hear claims that General Pryor's criticisms of
Section 5 of the Voting Rights Act indicate a lack of
commitment to civil rights. But the real story is that General
Pryor has a solid record of commitment to civil rights, which
includes defending majority-minority voting districts, leading
the battle to abolish the Alabama Constitution's prohibition on
interracial marriage, and working with the Clinton
administration's Justice Department to prosecute the former Ku
Klux Klansmen who perpetrated the bombing of Birmingham's 16th
Street Baptist Church, which resulted in the deaths of four
little girls in 1963.
We will no doubt hear other claims during the course of
this hearing distorting General Pryor's record or presenting
only partial truths. And I want to urge my colleagues, and
really everyone here, to listen closely so that the real story
is heard. I think those who listen with an open mind may be
surprised, and even impressed. And I look forward to hearing
General Pryor's testimony.
Having said all that, you had an excellent record in law
school. You have had an excellent record since law school. You
have a record of honor and integrity. You have a record of
speaking your mind, sometimes irritating everybody concerned or
a lot of people, but standing up for what you believe the law
really says and what the law really is. And I think you have
won a lot of cases that some people might tend to criticize who
don't realize that you won them in the end.
I just want to say that, knowing you and having spent some
time with you, some extensive time with you, I am very
impressed with you as a human being, as a person who is trying
to do what is right, and as an Attorney General in this country
who I think has stood up against a lot of special interest
groups to do what is right and do what the law says should be
done. And I hope my colleagues will feel the same at the end of
this discussion. If they listen, I believe that they will.
So, with that, we will have the statement of Senator
Schumer, who is representing the minority here today, and then
we will go with your statement and then questions.
STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE
STATE OF NEW YORK
Senator Schumer. Thank you, Mr. Chairman, and first let me
thank you for bringing the hearing down to this room, G50,
accommodating some of those who are disabled, who very much
wanted to be here. I want to thank my colleagues, Senators
Shelby and Sessions. They are both very well respected by
people on both sides of the aisle, and their endorsement will
certainly be weighed and weighed carefully.
And finally, I just want to say something to the family of
you, General Pryor. I see your two beautiful girls there, and I
have two girls who are a little older now.
There are going to be some tough questions asked here. That
is our responsibility. But we want to tell you that our respect
for your dad as a public servant and as a father and as a
husband, this has no bearing on our view of him as a person.
This is how we do it here, because many of us believe the views
are more important or just as important or certainly very
important, do not even have to say, speaking for all my
colleagues, where they stand, and we have to elicit those
views. So I just wanted the family to understand, and welcome
them here as well.
Now, Mr. Chairman, before I get into some of my concerns
about General Pryor's nomination, I want to note that earlier
this week the Senate confirmed Michael Chertoff to the Third
Circuit Court of Appeals. He is the 128th judge confirmed by
the Senate since President Bush took office. That is 128
confirmed of 130 who have come to the floor. That is a 99
percent success rate. Again, to call the minority
obstructionist because they have approved only 128 over 130
leads to the almost absurd conclusion that the only way not to
be obstructionist is to approve every single one of the
President's nominees. And hopefully later today we are going to
confirm Richard Wesley from New York, from my State, to the
Second Circuit. I know a little bit about Judge Wesley. He is a
model nominee. He is conservative, no doubt about it, and based
on the votes he took as a State legislator, it is a fair bet to
say he is pro-life, but he is well within the mainstream. His
personal views are sufficiently moderate that they do not get
in the way of being a fair jurist. I start by nothing Wesley
and Michael Chertoff and the remarkable success President Bush
has had in getting his nominees confirmed by the Senate.
Because of the hue and cry we hear from the White House and
from across the aisle, you would think those numbers would be
reversed and 99 percent of the nominees were stalled. Again,
that is 128 confirmed against 2 we are opposing on the floor.
I note all of this, not only to make sure the record is
clear on this point, but again to state the obvious. When the
President sends us nominees who are legally excellent, diverse
and within the ideological mainstream, even though we may not
agree with them on most issues, and those who will respect to
the Senate's constitutionally mandated coequal role in the
process, the nominees pass through the Senate like a hot knife
through butter.
In reviewing the record of the nominee before us here
today, I am disappointed to say, at least on reading the
record--and I look forward to hearing the questions. I am
disappointed to say that the nominee looks more like the 9
nominees I have personally voted against than the 119 that I
have voted for, and I want to say to my colleagues, both my
good friend from Utah and my good friend from Alabama, as well
as the Congressman who was here, these views are not based on
any interest groups. We all know that there are groups on the
left and groups on the right who pressure. That is the American
way. But my view, my worries about General Pryor's record are
based on statements he made, not based on that of any group.
Looking at the record, it seems that it is almost unfair to say
that he is like the 9 that I have opposed, because really in
many ways, Attorney General Pryor looks like an amalgam of
several of them.
On States' rights and women's rights he looks a lot like
Jeffrey Sutton and D. Brook Smith. On choice and privacy he
looks a lot like Priscilla Owen and Carolyn Kuhl. On gay rights
he looks a lot like Timothy Tymkovich. On separation of church
and State, he looks a lot like J. Leon Holmes and Michael
McConnell. The list goes on. In a way, unfortunately, General
Pryor's views seem to be an unfortunate stitching together of
the worst parts of the most troubling judges we have seen thus
far. I would say this, the one nominee he does not seem to
resemble is Miguel Estrada. That is because while we know very
little about Mr. Estrada's views, we know a lot about Mr.
Pryor's, and we respect his candor. Candor is necessary, but
not sufficient, at least in my view, in terms of approving a
nominee. And I know that, and I have an expectation, that you
will answer our questions about those views.
But I will say this, and I would caution my colleagues, it
is just not enough to say, ``I will follow the law.'' Every
nominee says that. And then we find when they get to the bench
they have many different ways of following the law. And what I
worry about, I do not like nominees too far left or too far
right, because idealogues tend to want to make law, not do what
the Founding Fathers said judges should do, interpret the law.
And in General Pryor's case his beliefs are so well known, so
deeply held, that it is very hard to believe, very hard to
believe that they are not going to deeply influence the way he
comes about saying, ``I will follow the law,'' and that would
be true of anybody who had very, very deeply held views.
We all know that judging is not a rote process. If it were,
we would have computers on the bench instead of men and women
in black robes. I would refer my colleagues to an article on
the op-ed page of today's New York Times, which shows that when
those nominated by Democratic Presidents follow the law on
cases of women's rights, environmental rights, et. al, they
seem to follow the law in completely different ways or many
different ways than the way nominees of Republican Presidents
follow the law. We all know that. So a person's views matter.
There is a degree of subjectivity, especially in close cases
and controversies on hot-button issues, and it is hard to
believe that the incredibly strong ideology of this nominee
will not impact how he rules if confirmed.
We will get into much of this when we have an opportunity
to question the nominee, but I do want to take a moment to
review some of the remarks that seem more disturbing that
Attorney General Pryor has made and some of the more worrisome
positions he has taken. As my colleagues know here, I have no
litmus test when it comes to these nominees. My guess is that
most, certainly many of the President's judicial nominees have
been pro-life, but I have voted for almost all of them because
I have been persuaded they are committed to upholding the rule
of law, and committed to upholding Roe v. Wade in particular. I
for one believe that a judge can be pro-life, yet be fair,
balanced, and uphold a woman's right to choose, but for a judge
to set aside his or her personal views, the commitment to the
rule of law must clearly supersede his or her personal agenda.
That is something some can pull off, but not everybody can.
Judge Wesley, our Second Circuit nominee, has proven he can do
it.
But based on the comments Attorney General Pryor has made
on this subject, I have got some real concerns that he cannot,
because he feels these views so deeply and so passionately. Mr.
Pryor has described the Supreme Court's decision in Roe v. Wade
as, the creation--quote--this is not some liberal interest
group quote; this is from General Pryor. He said it. Quote:
``Roe v. Wade is a creation,'' quote, ``out of thin air of a
constitutional right to murder an unborn child.'' He has said
that he, quote, ``will never forget January 22nd, 1973, the day
seven members of our highest court ripped up the
Constitution.'' Mr. Pryor has said he opposes abortion even in
the cases of rape or incest, and would limit the right to
choose to narrow circumstances where a woman's life is at
stake. He has described Roe as, quote, ``the worst abomination
in the history of constitutional law.'' Worse than Plessy v.
Ferguson, worse than Dred Scott, worse than Korematsu. It is a
remarkable comment to make, and I have to say, I do respect
you, Mr. Attorney General, for speaking your mind.
But I am deeply concerned that any woman who comes before
you, seeking to vindicate her rights, her constitutional rights
as defined by the Supreme Court, will have a tough time finding
objectivity with Bill Pryor.
But my concerns about this nomination hardly begin and end
with the choice issue. On gay rights the Attorney General
believes it is constitutional to lock up gays and lesbians for
having intimate relations in the privacy of their own homes.
And he has equated gay sex with prostitution, adultery,
necrophilia, bestiality, possession of child pornography,
incest and pedophilia.
On criminal justice issues, whereas my colleagues know I
tend to agree with the Republican side just about as often as I
agree with the Democratic side, Attorney General Pryor defended
his State's practice of handcuffing prisoners to hitching posts
in the hot Alabama sun for seven hours without giving them even
a drop of water to drink. And then when this Supreme Court held
the practice violated the Eighth Amendment's ban on cruel and
unusual punishment, he accused the Supreme Court Justices of,
quote, ``applying their own subjective views on appropriate
methods of prison discipline.''
Now, I am all for being tough on crime. I wrote on the
House side the Capital Punishment Law, and the Three Strikes
and You're Out Law, but to say that seven hours handcuffed to a
hitching post in the Alabama summer sun without a drink of
water is cruel and unusual, is not unreasonable at all. To
accuse this not so liberal Supreme Court of imposing subjective
views in a case that extreme, well, let me just say that goes a
bit far, at least as far as I am concerned.
When it comes to separation of church and State, we have to
be concerned as well. Again, I agree that some cases, in some
cases courts have gone too far. I think the Ninth Circuit went
off the deep end in the Pledge of Allegiance case. I personally
am a deeply religious man. I believe that if we all behaved
more in accord with traditional religious teachings, we would
have a better, healthier and safer country. But the comments
the Attorney General has made, coming from someone who if
confirmed will be sworn to uphold and defend the Constitution
and protect the rights of all Americans regardless of their
religious beliefs, they are troubling as well.
When it comes to States' rights, the record gets even more
disturbing. Attorney General Pryor has been one of the
staunchest advocates of the Rehnquist Court's efforts to roll
back the clock, not just to the 1930's, but even to the 1880's.
He is an ardent supporter of an activist Supreme Court agenda,
cutting back Congress's power and the Federal Government's
power to protect women, workers, consumers, the environment and
civil rights. For instance, on States' rights, as Alabama's
Attorney General Mr. Pryor filed the only amicus brief from
among the 50 states, urging the court to undo significant
portions of the Violence Against Women Act. In commenting on
that law, Attorney General Pryor said, quote, ``One wonders why
VAWA enjoys such political support, especially in Congress.''
Well, I am one of the supporters of VAWA, and I am perplexed by
that comment. One wonders why VAWA enjoys such political
support? The millions of American women who have been beaten by
their spouses? How can one wonder why we would want to protect
women from violence, particularly when this issue had been
swept under the rug for generations? It is another shocking
statement that I find difficult to understand.
Attorney General Pryor's ardent support of States' rights
extends even to the realm of child welfare. At the same time he
was conceding that Alabama had failed to fulfill the
requirements of a Federal consent decree regarding the
operation of the State's child welfare system, he was demanding
that the State be let out of the deal. It is not so much the
position he took as the comments made afterward. Attorney
General Pryor said, quote, ``My job is to make sure the State
of Alabama isn't run by the Federal Courts. My job isn't to
come here and help children,'' unquote. When a State fails to
satisfy the requirements of Federal laws regarding the safety
and welfare of children, I would say the Attorney General's job
is to first ensure the protection of those children, not to
fight the involvement in Federal Court. I do not see that as a
controversial proposition, but at least by these statements,
General Pryor, not some interest group, apparently believes
otherwise.
The environment, same concerns. Bill Pryor was the lone
State Attorney General to file an amicus brief arguing that the
Constitution does not give the Federal Government the power to
regulate intrastate waters that serve as a habitat for
migratory birds. The Attorney General took this position
despite decades of Supreme Court precedent and the Federal
Clean Water Act standing for the contrary proposition.
So you might think that Attorney General Pryor's State
right advocacy knows no bounds, but there is a limit. Bill
Pryor was the only State Attorney General to file an amicus
brief supporting the Supreme Court's intervention in Florida's
election dispute during Bush v. Gore. It appears that when the
Attorney General likes the outcome, he is on the States' rights
side, but in this important case, where the Supreme Court
overruled the States' position, there he was with Federal
intervention.
Contrast the approach in Bush v. Gore to what happened when
it came to the push for the Supreme Court to limit the
application of the Americans With Disabilities Act to the
States. Mr. Pryor was the driving force behind the Garret case
in which a nurse contracted breast cancer, took time off to
deal with her illness, and when she returned found that in
violation of the ADA she had been demoted. Attorney General
Pryor believed the State university hospital where she worked
had every right to demote Ms. Garret and managed to convince
five Justices on the Supreme Court to agree with him.
Mr. Pryor's antipathy for the ADA is obvious from the many
extra-judicial comments he has made on the subject. At one
point he claimed that, quote, ``When Congress passed the ADA in
1990 all 50 States had laws on the books protecting the rights
of the disabled. Congress passed the ADA as a `'me-too``
approach, not as a way of protecting persons.'' Sorry, the
quotes are within his statement. ``Congress passed the ADA
approach, not as a way of persons who were ignored or left
behind,'' unquote.
I have to say again as a Congressman, I was on the House
side, who worked hard to get the ADA passed in the House, I
find that comment somewhat offensive. I can only imagine what
Senator Harkin, our leader on the ADA, would have to say to the
nominee if he were asking questions here today.
Bill Pryor has praised every one of the Court's major
States' rights and federalism decisions over the past decade,
literally cheering as law after law protecting millions of
Americans has been peeled off the books. As he said 2 years ago
in an address to the Federalist Society, that federalism is a,
quote, ``subject that is near and dear to my heart and to the
heart of all members of the society,'' unquote. Just a year
earlier in another speech to the Federalist Society Mr. Pryor
made these remarks, quote, ``We are one vote away from the
demise of federalism, and in this term the Rehnquist Court
issued two awful rulings that preserved the worst examples of
judicial activism, Miranda v. Arizona and Roe v. Wade. Perhaps
that means that our last real hope for federalism is the
election of Governor George W. Bush as the President of the
United States, since he has said his favorite Justices are
Antonin Scalia and Clarence Thomas. I will end with my prayer
for the next administration. Please, God, no more Souters.''
I think that tells us a fair amount about where Mr. Pryor
is coming from. If Bill Pryor becomes a judge, it seems hard to
believe he will be a moderate. He will style himself, it would
appear from his previous record and comments, after the most
extreme and activist judges on the Federal bench.
Now, a few years ago several of my colleagues on this
Committee, including my good friend Orrin Hatch from Utah,
opposed the nomination of another nominee to the Eleventh
Circuit on the ground that she, quote, ``would be an activist
who would legislate from the bench,'' unquote. I do not know
how you can look at Bill Pryor's record and not come to the
same conclusion. I do not know if that is why he received a
partial ``not qualified'' rating from the ABA or whether the
ABA found something else to be concerned about. But for me,
Attorney General Pryor's record screams passionate advocate,
and doesn't so much whisper judge.
Bill Pryor is a proud and distinguished ideological
warrior. I respect that. That is part of America. But I do not
believe the ideological warriors, whether from the left or the
right, should predominate on the bench. They tend to make law,
not interpret law, and that is not what any of us should want
from our judges.
Mr. Chairman, I am looking forward to hearing Mr. Pryor
address these issues. I mentioned to him I would ask some tough
questions and raise some tough concerns. I would close by just
saying that this appears to be another nomination that will
divide us, not unite us. More than any administration in
history, this White House is choosing judges through an
ideological prism. I am disappointed we have to continue
fighting these nominees who are chosen more for their
allegiance to a hard-line ideological agenda than any other
factor.
If we have a Supreme Court nomination later this summer, I
really hope we see a nominee who looks a lot more like Richard
Wesley, a nominee all 100 Senators could support, and a lot
less like someone straight out of the right-wing wheel house.
As everyone knows, I believe in balance. If Mr. Pryor were
nominated to a court with a heavy liberal tilt, maybe I would
view this nomination differently. If there were eight Harlans
on the court, I would love to see a Scalia on the court to
provide some balance, and that maybe was the way it was 30
years ago. But as everyone knows, the Fifth Circuit is already
one of the most conservative courts in the country, and at
least given his previous record, Attorney General Pryor may be
more conservative than the most conservative judges already
serving on this imbalanced court.
So in my view, Mr. Chairman, Mr. Pryor has a tough row to
hoe here. He will get a chance to make his case, but to me at
least, on first inspection, this is one of the most troubling
records we have seen thus far, and Mr. Pryor, at least to this
one member, has to go a long way before he will convince me,
and I think many of us, that he will be a fair, down-the-middle
dispassionate judge for all Americans.
Thank you.
Chairman Hatch. Thank you, Senator.
[Applause.]
Chairman Hatch. We will have no disturbances in here or I
will have you removed. It is just that simple. We are going to
run a very decent hearing, and we are just not going to have
any more of that. So anybody who does that, I am directing the
Sergeant of Arms to remove them from this room, on either side
of this issue. This is an important hearing. It is for the
Eleventh Circuit Court of Appeals.
Just one correction. We hear this, well, we Democrats have
voted for 128 and we have only rejected 2. That is not quite
the story, and I think people need to know this. Yesterday I
was interested because former Senator Bob Griffin corrected me
in our caucus meeting when I indicated that there has only been
one filibuster in the history of the country of a Federal judge
and that was Justice Fortas. He said that was not a filibuster.
He said, literally, we had more votes up and down against
Fortas that would have defeated it, and that nobody--and he
gave me a letter with his comments, making it very clear that
there was no desire on anybody's part to filibuster, but to
fully debate that at that particular time.
In this particular case, over the last couple of years of
this, actually 2-1/2 years of this President's tenure, we have
had years of delay for a number of Circuit Court nominees. Yes,
we have been able to get through a lot of District Court
nominees, but when it comes to circuit nominees, it has been
very, very much of an ordeal. Miguel Estrada is just one.
Priscilla Owen is another. We have had an indication they are
going to filibuster Judge Pickering, going to filibuster Judge
Boyle, who has now been sitting here for better than 2 years.
By the way, Roberts, who just got through, and Boyle, have been
sitting here for 12 years, nominated three times by two
different Presidents. They could not even get a hearing in the
2 years when the Democrats controlled the Committee. Judge
Carolyn Kuhl, there has been some indication there is going to
be a filibuster there. The nominee, J. Leon Holmes, some
indication of a filibuster there. There are four nominees from
Michigan that are being held up for no reason other than that
two Senators are irritated because they did not get their two
judges during the Clinton years. I feel badly about that, but
the fact of the matter is, they should not be holding up six
Circuit Court nominees, four of them who they admit, I think,
have admitted that they are qualified people. There have been
large negative votes against a significant number of Circuit
Court nominees by our friends on the other side, sending a
message, do not send a conservative to the Supreme Court.
You know, when you stop and think about it, it is not quite
just 128 versus 2. So I just wanted to correct the record on
that so that we all understand that we are in a crisis here in
the United States Senate.
I also want people to understand, Mr. Pryor, I guess I
might as well say this to you, you are an active person. I hope
you will be given an opportunity by our colleagues on both
sides to explain some of the statements you have made and why
you have upheld the law, because you have. You do not get
people like Senator Shelby coming here and praising you like he
did, or Senator Sessions praising you like he did, unless you
have upheld the law, even against your own viewpoints a number
of times. You are a person of deep religious conviction. You
believe very strongly in the Catholic faith, and you have said
so publicly, and some of these criticisms come from your
expressions of your own personal faith, which you have never,
to my knowledge, allowed to interfere with what the law is.
Now, we will see. Personally having chatted with you about
a great number of these issues, you have not only reasonable
explanations, but I think very good explanations for every
criticism that could be brought your way.
Now, having said all that, let us give you an opportunity
to make your statement. I hope you will introduce your family
to us, and then we will turn to questions.
STATEMENT OF WILLIAM H. PRYOR, JR., NOMINEE TO BE CIRCUIT JUDGE
FOR THE ELEVENTH CIRCUIT
Mr. Pryor. Thank you, Mr. Chairman. With me today are my
family, my spouse Kris, my daughters Caroline and Victoria, who
are seated behind me. Thank you for the warm welcome.
I have only something very brief that I would like to say.
First, I want to thank the President of the United States for
giving me the honor of being nominated to the U.S. Court of
Appeals for the Eleventh Circuit.
I want to thank the people of Alabama for giving me the
privilege to serve as their Attorney General for the last 6-1/2
years. I want to thank Senator Sessions for the opportunities
he afforded me, particularly while he was Attorney General.
And finally, I want to thank you, Mr. Chairman, and all the
members of this Committee for giving me the opportunity to
appear before you today and to answer your questions. Thank
you.
[The biographical information of Mr. Pryor follows:]
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Chairman Hatch. Thank you so much.
We have had a number of issues raised. Let us just hit a
few of them, and I am sure we will have an opportunity on both
sides, because I want this to be a lively debate. I want
Senators on both sides to be able to ask any questions they
want to, and I believe you can answer all of them between you
and me, and we have spent hours together discussing some of
these things.
So let me just say you have openly criticized Roe v. Wade.
Some will find that just awful. And you did use language,
called it ``the worst abomination in constitutional law in
history,'' and Senator Schumer brought up your statement, ``I
will never forget January 22nd, 1973, the day seven members of
our highest court ripped the Constitution.'' But you also--
well, let me just ask you, tell us about that. Tell us about
why we should have you as a judge when you have criticized one
of the hallmark opinions in the eyes of some, certainly not me,
that has come forth in the last 40 years.
Mr. Pryor. Thank you, Senator. I appreciate the opportunity
to answer that question. I have a record as Attorney General
that is separate from my personal beliefs, and I have
demonstrated as Attorney General that I am able to set aside my
personal beliefs and follow the law, evenly when I strongly
disagree with the law.
In the context of the issue that you raised, abortion, a
couple of years ago, actually several years ago in my first
year as Attorney General, our legislature had passed a partial
birth abortion law, and you mentioned earlier, there were at
least a couple of different ways that that law could have been
interpreted; it could have been broadly interpreted. I knew
that when a lawsuit was filed in a Federal Court challenging
the application of that law, that it was going to be a
formidable challenge to defend the law in the light of the
precedents of the Supreme Court in Roe and in Casey. I had an
obligation as Attorney General, though before Stenberg, to make
whatever reasonable argument I could in defense of that law, so
long as it was consistent with those precedents. So looking at
that law and looking at those precedents, I required, I ordered
the district attorneys of Alabama to apply that law in the
narrowest construction available, that is, only to post-
viability fetuses, because that was my reading of the case law.
It was an interpretation that disagreed with the position of
the Governor, who appointed me, who was a party to the lawsuit.
It was criticized by some pro-life activists in Alabama, but it
was my best judgment of what the law required.
Chairman Hatch. Even though you believe otherwise?
Mr. Pryor. Even though I believe strongly otherwise. I
believe that abortion is the taking of innocent human life. I
believe that abortion is morally wrong. I've never wavered from
that, and in representing the people of Alabama, I have been a
candid, engaged Attorney General, who has been involved in the
type of--
Chairman Hatch. What does that mean with regard to the
Eleventh Circuit Court of Appeals? If you get on that court,
how are you going to treat Roe v. Wade?
Mr. Pryor. Well, my record as Attorney General shows that I
am able to put aside my personal beliefs and follow the law,
even when I strongly disagree with it, to look carefully at
precedents and to do my duty. That is the same duty that I
would have as a judge. Now, as an advocate for the State of
Alabama of course I have an obligation to make a reasonable
argument in defense of the law, but as a judge I would have to
do my best to determine from the precedents what the law
actually at the end of the day requires. My record demonstrates
that I can do that.
Chairman Hatch. So even though you disagree with Roe v.
Wade you would act in accordance with Roe v. Wade on the
Eleventh Circuit Court of Appeals?
Mr. Pryor. Even though I strongly disagree with Roe v. Wade
I have acted in accordance with it as Attorney General and
would continue to do so as a Court of Appeals Judge.
Chairman Hatch. Can we rely on that?
Mr. Pryor. You can take it to the bank, Mr. Chairman.
Chairman Hatch. Let me just--you have had some criticism.
Let me just bring up just a couple of them, because my time is
going, and I am going to hold everybody to 10 minutes, and we
will do various rounds so everybody will have a chance to ask
whatever questions they want.
I am one of the--it was Biden-Hatch Violence Against Women
Act in the Senate. I took a very strong position on that bill,
took a lot of criticism for it, because there were two
different points of view with regard to that bill and how it
was written. Now, you have been criticized because of
litigation regarding the Violence Against Women's Act, as
though your position on that bill was improper. Now, tell me
about that.
Mr. Pryor. Well, my position, Mr. Chairman, was the
position adopted by the Supreme Court of the United States in
the Morrison case.
Chairman Hatch. In other words you followed not only the
law, but you won in the Supreme Court of the United States of
America.
Mr. Pryor. The argument I presented was the position
adopted by the Court, that's right.
Chairman Hatch. So if anybody is out of the mainstream
here, it has to be the Supreme Court I guess.
Mr. Pryor. Well, I would suggest that the Court is within
the mainstream.
Chairman Hatch. I think so too. That is the point I am
trying to make. The fact is, is that, yes, you can be
criticized because you criticized a portion of the Violence
Against Women's Act, believing that you were right and you were
proven right in the Supreme Court, which is the law of the
land, just as much as Roe v. Wade, right?
Mr. Pryor. Absolutely.
Chairman Hatch. So anybody that suggests that you were not
following the law and that you went outside the mainstream
happens to be wrong.
Mr. Pryor. I believe so.
Chairman Hatch. I think the Supreme Court believes so too.
Now, I disagreed with the Supreme Court on that issue, but it
is the law, and I accept it. So we have tried to go back to the
legislative table and rework it, and we will try and do that.
Let me just give you a couple of others that are important.
Your record on race is commendable, and I quoted Alvin Holmes,
and so did others here today including the two Senators from
Alabama and the Congressman, the black representative for
Alabama House of Representatives for 20 years. He said,
``During my time of service I have led most of the fights for
civil rights of blacks, women, lesbians and gays and other
minorities,'' unquote. Representative Holmes, in his letter to
us, lists a number of your accomplishments on race that I would
just like to ask you about in my remaining three minutes,
three-and-a-half minutes. In addition to your defense of
majority/minority districts, which we have already discussed,
or at least I have discussed it, you worked with Doug Jones who
was President Clinton's U.S. Attorney for the Northern District
of Alabama to convict two former Klansmen for the bombing of
Birmingham's 16th Street Baptist Church in 1963; is that
correct?
Mr. Pryor. That's correct. I actually appointed him as a
deputy Attorney General to do that prosecution.
Chairman Hatch. Four little girls were killed in that
particular despicable act of terror, am I right?
Mr. Pryor. That's right.
Chairman Hatch. You personally argued to uphold the
conviction of one of the murderers on May 20th of this year,
just a few weeks ago before the Alabama Court of Criminal
Appeals; am I right on that?
Mr. Pryor. Yes.
Chairman Hatch. Now, you were instrumental in creating the
Alabama Sentencing Commission, which Representative Holmes
applauded for its purpose of ending racial disparities and
criminal punishments. Am I right on that?
Mr. Pryor. That's right.
Chairman Hatch. In the year 2000 Representative Holmes,
this great black leader in Alabama, introduced a bill in the
Alabama legislature to amend the State Constitution to repeal
Alabama's prohibition of interracial marriages. He writes,
quote, ``Every prominent white political leader in Alabama,
both Republican and Democrat, opposed my bill or remained
silent except Bill Pryor, who openly and publicly asked the
white and black citizens of Alabama to vote and repeal such
racist law. It was passed with a slim majority among the
voters, and Bill Pryor later successfully defended that repeal
when the leader of a racist group called the Confederate
Heritage sued the State to challenge it,'' unquote. Is he right
on that?
Mr. Pryor. Absolutely.
Chairman Hatch. Now, General Pryor, you were committed to
ending Alabama's ban on interracial marriage from the moment
you took office, were you not?
Mr. Pryor. I was.
Chairman Hatch. In fact, I understand that you discussed in
your first inaugural address, I think you stated--let me get an
actual quote. ``Any provision of the Constitution of Alabama or
for that matter the Code of Alabama, that classifies our
citizens or any persons on the color of their skin, their race,
should be stricken,'' unquote. Is that correct?
Mr. Pryor. That's what I said.
Chairman Hatch. In addition you started Mentor Alabama.
Could you please explain that for a minute?
Mr. Pryor. Absolutely. Mentor Alabama is a program designed
to recruit positive adult role models for thousands of at-risk
children in our State. We've recruited more than 3,700 mentors
for at-risk children in every county of Alabama. And I work as
a reading tutor in the Montgomery County Public Schools. I have
for the last 3 years as part of that initiative, as I encourage
others to do the same.
Chairman Hatch. Let me just say finally, Representative
Holmes notes that a bill he sponsored to establish cross
burning as a felony passed the State House in May 15th of this
year; is that right?
Mr. Pryor. Yes.
Chairman Hatch. Now, he observes, quote, ``That bill was
written by Bill Pryor, and he was the only white leader in
Alabama that openly and publicly supported it.'' Did you write
that bill, General Pryor?
Mr. Pryor. I did.
Chairman Hatch. Well, General Pryor, I think you can take
some of your statements out of context and make a big fuss
about them, and I think we have to look at the record and what
you have stood for and what you have done. I think if people
will do that and do that fairly, they will realize that you are
a person who can set aside your personal, your very heartfelt
personal views and go from there.
Now, my time is up.
I am going to interrupt everybody at 10 minutes, but we
will have enough rounds so everybody will have an opportunity
to ask the questions they want.
Senator Schumer.
Senator Schumer. Thank you, Mr. Chairman. I want to thank
you for having this hearing, where we can fully question
witnesses, and we are having just one witness here, and this is
how it ought to be done, and we very much appreciate that.
Chairman Hatch. I appreciate you.
Senator Schumer. My first question is, I want to go back to
that speech you gave, Attorney General, to the Federalist
Society in 2000, where you said, ``We are one vote away from
the demise federalism, and in this term the Rehnquist Court
issued two awful rulings that preserved the worst examples of
judicial activism, Miranda and Roe. Perhaps that means that our
real last hope for federalism is the election of Governor
George W. Bush as President of the United States, since he has
said his favorite Justices are Antonin Scalia and Clarence
Thomas. I will end with my prayer for the next administration.
Please, God, no more Souters,'' unquote.
And one other comment you made to a journalist in 2000.
Just after Bush v. Gore was decided, you said, ``I'm probably
the only one who wanted it 5 to 4. I wanted Governor Bush to
have a full appreciation of the judiciary and judicial
selection, so we can have no more appointments like Justice
Souter,'' unquote.
I take it from these comments and others that you have made
in the past few years, you believe that a judge's ideology does
at least in some circumstances drive how he rules on cases. I
appreciate your candor in this regard, and the evidence
supporting that position is more or less irrefutable now. The
new case study by Professor Sunstein, excerpted in today's New
York Times, provides empirical evidence for what I think you
and I and pretty much everyone else in the room knows to be
true, that ideology all too often drives how judges rule in
particular cases. To my eye Justice Souter is a paragon of
moderation. He was appointed by of course a Republican
President. He appears to be a judge who does not have a strong
personal ideology that drives his decision making. You
disagree. Why? What's wrong with Justice Souter? Are you
hostile to Justice Souter because he has not hewed the party
line? Do you believe Justice Souter is trying to implement a
personal ideological agenda from the bench?
Mr. Pryor. Thank you, Senator. In the context of the first
remark that you quoted, which was an accurate quotation and in
which I said, ``Please, God, no more Souters,'' that was my
perhaps feeble attempt at humor at the very last comment in a
speech in which I had earlier criticized a dissenting opinion
of Justice Souter in a case in which I had been involved.
I have on several occasions disagreed with Justice Souter's
interpretations of the law, particularly in cases in which I
have been involved. And my comments are meant only in that
light. It's certainly not meant as any personal animus toward
Justice Souter who's had a--
Senator Schumer. Do you think he is too liberal? Do you
think ideology motivates him in how he rules, or is he just
following the law?
Mr. Pryor. The only thing I can say is that on several
different occasions I have disagreed with his interpretations
of the law.
Senator Schumer. So you think that--I mean you are saying
you will follow the law. I am sure he says he is following the
law. Is not ideology a motivating factor here?
Mr. Pryor. I don't know what is motivating Justice Souter.
Senator Schumer. Do you think he is out of the mainstream?
Mr. Pryor. I wouldn't use those terms. I would say that his
interpretations in several cases in which I have personally
been involved are different from mine, and I have disagreed
with them. And the--I am an active, engaged Attorney General. I
criticize rulings of the Supreme Court. I praise rulings. I
share those views and my values with the people of Alabama who
elect me. And I think that's part of our role as lawyers and
advocates in the legal system, and in making it better. And in
that context there have been several occasions where I have
disagreed with Justice Souter's opinions.
Senator Schumer. Why Souter more than--I don't think Souter
is regarded as any more liberal than the other three Justices
who are regarded as sort of on the more liberal side, Ginsburg,
Breyer and Stevens. Why have you always sort of singled out
Souter in your comments?
Mr. Pryor. Well, in the context of the speech that you
mentioned, where I said, ``Please, God, no more Souters,'' I
had specifically criticized his dissenting opinion in Morrison,
which has already been discussed today, was the case involving
one part of the Violence Against Women Act.
Senator Schumer. But the comments seem to go beyond just
one case.
Mr. Pryor. It's only--
Senator Schumer. Especially the one on the other one, ``We
should have no more appointments like Souter so everyone can
appreciate''--you are sort of saying how bad he is.
Mr. Pryor. Well, there have been two--those were two cases
that I was in specific reference to, one in which he had
written an opinion and the other in which he had written an
opinion, and I disagreed with those opinions.
Senator Schumer. But why did you pick Souter? On all those
cases he had--
Mr. Pryor. Not everyone wrote an opinion in those cases.
Senator Schumer. Okay. But Justice Breyer did write one in
the Violence Against Women Act.
Mr. Pryor. Okay.
Senator Schumer. Okay. But again, you think Souter is
within the mainstream?
Mr. Pryor. I don't know if I'm the evaluator of who is in
the mainstream or not.
Senator Schumer. I know, but what is your opinion? We are
just asking you your opinion.
Mr. Pryor. I think he's had a distinguished career as a
jurist, and, and you know, I think there's a pretty broad
definition of what constitutes the mainstream, and he would
certainly be included in it.
Senator Schumer. Okay. Let me ask you this one. Again, you
have fervent personal beliefs on Roe v. Wade.
Mr. Pryor. I do.
Senator Schumer. And I respect those. I mean I am friends
with the Bishop in our community who says the rosary outside an
abortion clinic, and I respect his right to do it. But please,
what can you say? I mean you feel this so passionately and you
have said repeatedly abortion is murder. What can you say today
that will give comfort to a woman who might come before you
trying to control the destiny of her body, trying to exercise
her fundamental rights? Would it not be logical that she would
be concerned that you would be looking for a way, quote,
``within the confines of the law''--because everyone looks that
way, no judge will admit they are going outside the law--to
deny her that right to choose? I mean how do you square feeling
so vehemently. Many people believe abortion is wrong, but when
you believe it is murder, how can you square that with--or how
can you give comfort to women throughout America, the majority
of whom believe in the right to choose, that you can be fair
and dispassionate? I do not think it is enough, as I mentioned
earlier, for us to simply hear you say, ``I will follow the
law.'' What can you say directly to that woman, not in a legal
way, but in a personal way, that might reassure her?
Mr. Pryor. I would say that that woman should be comforted
by looking at my record as Attorney General, by looking at the
fact that though I have vehemently disagreed with Roe v. Wade
on the one hand, as Attorney General, where I've had a
constitutional duty to uphold and enforce the law on the other
hand, I have done my duty. And in the context specifically of
when the Alabama partial birth abortion law was challenged,
that law could have been interpreted in at least a couple of
different ways, I looked at the precedents of the Supreme Court
in Roe and in Casey, and gave the narrowest construction
available to that law, and ordered the district attorneys of
Alabama to enforce it only in that narrowest construction.
Senator Schumer. Now, you have said on occasion, on several
occasions, that Roe v. Wade is quote, ``the worst abomination
in the history of constitutional law.'' A) Do you believe that
as of right now?
Mr. Pryor. I do.
Senator Schumer. I appreciate your candor, I really do. And
second, would you endorse the Court's reversing Roe v. Wade at
the first opportunity, just as you argued for the Court to
constrict the Violence Against Women Act and you got five
Justices to agree with you?
Mr. Pryor. Well, obviously, if I had the opportunity to be
a Court of Appeals Judge, I wouldn't be in the position to do
that, Senator Schumer.
Senator Schumer. But right now as a person would you
endorse the Court's reversing Roe v. Wade at the first
opportunity?
Mr. Pryor. Senator, I don't know what that opportunity
would be, and that is a hard thing to speculate about unless I
know more about what the case involves. I would say--
Senator Schumer. Let's say this case is pretty much a
rehearing of Roe. It comes up to the Court. They accept it.
Would you endorse the Court reversing Roe?
Mr. Pryor. Well, I'll tell you this, in the context of the
Stenberg case, when it was presented to the Supreme Court of
the United States, the Attorney General of Nebraska at the time
was a very dear friend of mine named Don Stenberg, and he
presented two questions before the Supreme Court, and one of
the questions he presented was an invitation for the Court to
overrule Roe. I called him up and urged him not to include that
question in his petition. So I would say that in that instance,
I did not do that.
Senator Schumer. Just one quick. ``If you believe--this is
what we have a hard time squaring, myself, I think some
others--if you believe that Roe is the worst abomination in the
history of constitutional law, it would seem to me to directly
follow that you would want the Court to reverse Roe. It is a
contradiction. You just said a minute ago that you believe that
is still the case, and now you are saying you would not endorse
the Court reversing it. It does not add up.
Mr. Pryor. Well, Senator, all I can tell you is that the
last time the Court had that opportunity, I urged my colleague
not to present that question to the Court.
Senator Schumer. Thank you, Mr. Chairman.
Chairman Hatch. Thank you.
Senator Cornyn?
Senator Cornyn. Thank you, Mr. Chairman.
Chairman Hatch. You had better get closer to the mike.
Senator Cornyn. Well, General Pryor, I want to welcome you
here for this hearing. I guess you know you are in for a rough
ride. But one of the things that I admire about you is that I
believe you are a man of courage and a person of character, and
someone who is not afraid to run away, or who is not willing to
run away from strongly-held beliefs. I also believe that you
are a person who cannot be pressured or intimidated, and I
believe your record as Attorney General has demonstrated that.
I also believe or happen to believe, in contrast to some of
the suggestions made by Senator Schumer, that your record is
inconsistent with someone who is able to show that same courage
and demonstrate that same character, and refuse to be pressured
or intimidated in your new role as a member of the Eleventh
Circuit Court of Appeals. Can you describe briefly how you see
yourself making that transition, and perhaps answer for those
who have never had to change a constitutional role because of
their service in a different branch of government, how you can
reconcile that?
Mr. Pryor. Well, it's a transition that I would relish and
welcome. I can think of no higher calling for an American than
to serve as a Federal Judge in the American system of
government and to have the responsibility of protecting and
defending the Constitution of the United States. I would leave
behind an active public service of a different kind, where I
have been a politician, I have been an elected official and run
for office and had to share my values with the people of
Alabama and to defend their laws and institutions in our State
Government, to do it without fear of favor, and to do it to the
best of my ability.
Now, sometimes that means, as I'm sure you recall from your
service as a State Attorney General, Senator, that you have to
make arguments that you think are reasonable in the defense of
your State, but not necessarily the one that ought to prevail
in the end in resolving a controversy, and that it is probably
not going to be the prevailing argument, but that you owe it to
your client, the State Government, to make that argument and to
let the Court decided. I wouldn't have that role any more.
I would have the role of making that tough final decision
of resolving the controversy in accordance with the law to the
best of my ability, honestly and diligently, quietly, and
listening to all sides, reading the briefs, becoming familiar
with the facts of any case, reading all the applicable case
law, and hearing from my colleagues in arriving at a decision.
Senator Cornyn. I know Senator Schumer, when he was asking
questions, said that it is almost irrefutable that judges will
demonstrate an ideology on the bench, and so we ought to just
face that and try to achieve some sort of ideological balance
on any given court. He also said it is not enough to say, ``I
will follow the law,'' which I fundamentally disagree with,
having been in a position of being an Attorney General and
having been a judge before, knowing that you change when you
put your hand on the Bible and you take an oath to uphold and
defend the Constitution of the United States and our respective
States in that capacity. But I do believe that more than just
your statement that you would follow the law, that your record
of enforcing the law, even though you might not agree with it,
demonstrates the seriousness with which you approach your oath
and recognize your duty. I think one of the things that you and
I probably see eye-to-eye on is that judges who substitute
their view, their personal view, whether it be a personal or
political or any other agenda for what the law is, become
lawmakers and thereby become law breakers. Could you perhaps
state your own view in that regard?
Mr. Pryor. I couldn't agree more with that statement,
Senator. That goes to the absolute core of my beliefs about the
legal system and the role of the judiciary. The judiciary has a
profound and humble, but vitally important role in interpreting
the law and following the law, and putting aside personal
beliefs and ensuring that the law has been faithfully executed,
according to the real lawmaker, which is the legislature, or in
the event of an interpretation of our highest law, the
Constitution, by virtue of the people themselves.
Senator Cornyn. I appreciate that statement. I believe that
the character and courage really you have shown and the
willingness to resist intimidation, and perhaps those who have
expressed displeasure at your enforcement activities as
Attorney General can derive some confidence that you will show
the same character and commitment to the law, and refuse to be
intimidated or pressured in discharging your responsibilities
as a member of the Eleventh Circuit Court of Appeals.
I know the--we have had some comment throughout my short
service on the Judiciary Committee, and the debate we are
currently engaged in about the use of a filibuster to prevent a
up or down vote by a bipartisan majority of the Senate on at
least two judicial nominees, and I just--I need to say that
while some tout the fact that 128 of President Bush's judicial
nominees have been confirmed, the fact remains that 2 are the
targets of, in my opinion, an unconstitutional use of the
filibuster. I do not see how anybody can be particularly proud
of that because the Constitution being violated two times is,
in my opinion, two times too many. And of course we are engaged
within the Senate, as I think we should be, to try to resolve
those differences now, and I am hopeful that the rule change
that Senator Frist has offered and which I have cosponsored
along with a bipartisan group of Senators, gets a favorable
decision in the Rules Committee and then on the floor, but
frankly, it is going to be a little bit uphill.
But it strikes me as very odd, when you look at the charts
that are sometimes displayed about how many of President Bush's
judicial nominees have been confirmed, to hear out of the same
mouth somebody who claims that President Bush is intent on
appointing hard liners--those who have a hard-line ideological
agenda, and so to me those are inconsistent, and I believe it
is our obligation as Senators and under the Constitution to
give an up or down vote to any nominee who comes before the
Committee or before the Senate, and I hope that is the case in
your instance. Obviously, each Senator is entitled under their
oath, and according to the dictates of their conscience to vote
as they see fit, but I am hopeful that you will have the
opportunity to have the merits of your nomination debated not
only in this Committee but on the floor of the Senate and that
you receive the confirmation you deserve.
I believe your testimony here today and that you view the
role as an advocate, your current job as Attorney General, far
differently from that of a Federal Judge, and when you do put
your hand on the Bible and take that oath, that you will hang
up your boxing gloves, your instruments as an advocate, and you
will accept and embrace your new responsibility as a judge and
follow the law.
Thank you very much.
Mr. Pryor. Thank you.
Chairman Hatch. Senator Feinstein?
Senator Feinstein. Thank you very much, Mr. Chairman.
Welcome, Attorney General.
I am one that believes that an individual can be an
advocate, can be counsel, and can relinquish those views and be
a good, fair, impartial judge. However, I must say this, in
this case my theory is really put to a test, and I want to let
you know why and ask a couple of questions.
Virtually in every area you have extraordinarily strong
views which continue and come out in a number of different
ways. Your comments about Roe make one believe, could he
really, suddenly, move away from those comments and be a judge?
Your comments on voting rights, on church/State, Miranda, your
comment about Justice Souter, your comments about Federal
involvement, that the Federal Government should not be involved
in education or street crime are just some example. So let me
begin with a couple of questions. Let me do the first one on
church and State.
One of the greatest ideals of our country is religious
freedom and the religious pluralism that it fosters, and in a
graduation speech to McGill-Toolen Catholic High School in
1997, I want to quote something you said. And I quote: ``The
American experiment is not a theocracy and does not establish
an official religion, but the Declaration of Independence and
the Constitution of the United States are rooted in a Christian
perspective of the nature of government and the nature of man.
The challenge of the next millennium will be to preserve the
American experiment by restoring its christian perspective.''
What are others to think of that statement, as to how you
would maintain something that is important to this plural
society, and that is an absolute separation of church and
State?
Mr. Pryor. I would invite anyone to look at my record as
Attorney General, Senator, and see how I have faithfully
applied the law in the area of the First Amendment.
I do believe that we derive our rights from God as stated
in the Declaration, and that's what I was referring to in that
speech. But in my first 2 years as Attorney General, we had a
long-running battle about religious expression in the public
schools of Alabama. The Governor who appointed me took the
position that the First Amendment didn't apply to the States,
that the Federal courts had no jurisdiction in this matter. On
the other hand, a Federal district court ruled that not only
could we not have teacher-led or school-sponsored religious
expression or religious activity, but the school officials
actually had a responsibility of censoring student-initiated
religious expression at school-sponsored events.
I chartered an appeal from that ruling that rejected the
arguments of both sides and adopted the argument--the position,
the precedents of the Supreme Court of the United States. And
that was that school-sponsored religious expression and
religious activity was improper, was a violation of the First
Amendment, as interpreted by the Supreme Court, but that the
First Amendment also protected genuinely student-initiated
religious expression.
That's the argument that I made in the Eleventh Circuit
Court of Appeals, and the Eleventh Circuit Court of Appeals
agreed with it. It was then taken to the Supreme Court of the
United States by the plaintiffs who were represented by the
ACLU, and after the Doe case, the high school football game
prayer case by the Supreme Court, they asked the Eleventh
Circuit to take another look at that decision, which they did.
And I advocated the position that I did before, which was there
could be no school-sponsored, government-sponsored religious
activity, but that private religious expression, genuinely
student-initiated religious expression, was fully protected by
the First Amendment.
The Eleventh Circuit Court of Appeals agreed again for the
second time with that argument and reinstated its opinion. The
plaintiffs then brought the case back to the Supreme Court of
the United States, which then denied certiorari.
That's my record as Attorney General, Senator, and that's
what I would invite people to look at. I understand my
obligation to follow the law, and I have a record of doing it.
You don't just have to take my word that I will follow the law.
You can look at my record as Attorney General and see where I
have done it.
Senator Feinstein. Then why would you make a comment like
that in a speech?
Mr. Pryor. Well, in part, one of my concerns at the time
was that in the very case that I mentioned, where the Federal
district court injunction required school officials to censor
the religious expression of the students, but then--at many
school-sponsored events, but then would allow religious
expression in other more limited circumstances, it was my
perspective that it was as if the government was picking and
choosing when we had, as individual citizens, as private
citizens, the right of religious freedom. And I thought that
was topsy-turvy. I thought that was exactly the opposite of the
view of the Constitution.
So it's that kind of perspective that I disagreed with.
Senator Feinstein. I appreciate that. That is just not what
you said. Let's go on to voting rights.
In 1997, you testified before this Committee on the subject
of judicial activism, and in your opening statement at that
time, you specifically mentioned Section 5 of the Voting Rights
Act, the centerpiece of the legislation, as a source for the
abuse of Federal power. And you encouraged its repeal or
amendment because you said it is ``an affront to federalism and
an expensive burden that has far outlived its usefulness.''
However, since the enactment of the statute in 1965, every
Supreme Court case to address the question has disagreed with
your view of Section 5. Time and again the Court has recognized
that guaranteeing all citizens the right to cast an equal vote
is essential to our democracy. Even as recently as in 1999, in
the case of Lopez v. Monterey County, the Court squarely held
that any intrusion on State sovereignty under Section 5 is
fully justified by the imperative to enforce the 15th
Amendment's prohibition of race discrimination in voting.
Can you please explain why you believe that Section 5 of
the Voting Rights Act is unnecessary and a burden that has
outlived its usefulness?
Mr. Pryor. My comments, of course, were not directed to any
court but to Congress itself, which has to make the final
decisions on reauthorization of Section 5 of the Voting Rights
Act. As Attorney General, my record has been consistently to
enforce Section 5 of the Voting Rights Act. The Voting Rights
Act is, in my judgment, one of the most important and necessary
laws in the history of the United States, and I support it. And
I support the absolute fact that Section 5 was a necessary
provision nearly 40 years ago when Congress was faced with the
massive racial discrimination in election systems, particularly
in my State and other parts of the Deep South.
Having said that, we have come a long way nearly 40 years
from then, and now if we want to move a polling place from a
school on one side of a street to a firehouse on another side
of the street, we have to get permission from the Department of
Justice to do so. It's routinely granted, but I have watched in
my own capacity as Attorney General as members of my own
political party and white voters, who I don't think were
designed by Congress to be protected by this law, have used
Section 5 as a sword in litigation for their own political
opportunity.
Senator Feinstein. Do you believe it is an affront to
federalism and an expensive burden that has far outlived its
usefulness?
Mr. Pryor. Yes, I believe that it has outlived its
usefulness. I have, nevertheless, as Attorney General actively
enforced that law and would continue to do so if I had the
privilege of serving as a judge. I have done that. I have a
record of doing that. And I think Congress should look at
Section 5. But that does not lessen in any way my commitment to
the core of the Voting Rights Act, which is Section 2, which,
of course, prohibits dilution of minority voting strength, and
I fully support Section 2 and believe it remains a necessary
law in our country. But this law that requires us to get
permission for even minor changes in our election system I
think could use some careful inspection by Congress. But my
record is in enforcing that provision as Attorney General, and
it would be my record if I had the opportunity to be a judge.
Senator Feinstein. All right. Now, one last question
quickly. You made a statement about the New Deal, the Great
Society, and the growing Federal bureaucracy, saying that we
have strayed too far in expansion of Federal Government at the
expense of both individual liberty and free enterprise. And
then you say, ``Congress, for example, should not be in the
business of public education, nor the control of street
crime.''
What do you mean by that?
Mr. Pryor. I believe that the primary and overwhelming
responsibility for public education and the curtailment of
ordinary criminal activity ought to be at the State and local
level, and it is--
Senator Feinstein. And it is. And it is.
Mr. Pryor. And it is at the State and local level.
Senator Feinstein. Then why would you feel that Congress,
for example, shouldn't pass a title of the Elementary and
Secondary Education Act that provides money for poor children
in the schools of America or why we shouldn't pass a crime bill
that would put cops on the streets of our cities?
Mr. Pryor. Well, I didn't oppose those specific pieces of
legislation, Senator--
Senator Feinstein. No--
Mr. Pryor. --and I do think that one of the things that
Congress must do in being very careful about respecting the
good work that can be done at the State and local level is that
it not become over-centralized in the work in those areas, that
it be supportive of the States but it not take over the work of
the States. There has been more and more legislation in that
area, and in my judgment, Congress needs to be careful about
balancing that.
Chairman Hatch. Senator, your time is up.
Senator Feinstein. My time is up. Thank you.
Chairman Hatch. Senator Chambliss?
STATEMENT OF HON. SAXBY CHAMBLISS, A U.S. SENATOR FROM THE
STATE OF GEORGIA
Senator Chambliss. Thank you, Mr. Chairman.
Mr. Chairman, normally I don't make statements when we have
nominees under consideration, but Attorney General Pryor
happens to be a neighbor to my State and is very well thought
of, very well respected by my Attorney General, who I have
great respect for; and this nomination also is to the circuit
that serves my State of Georgia. So there are certain things
that I would like to put in the record.
Mr. Chairman, this is a very impressive nominee, so I do
appreciate the opportunity to voice my strong support for the
nomination of Alabama's distinguished Attorney General, Bill
Pryor, to the Eleventh Circuit Court of Appeals. His legal
intellect is unmatched, and he has a zeal for the law that is
unquestioned, as we have already seen by the questions that
have been asked of him today.
After graduating at the top of his class at Tulane Law
School where he served as editor-in-chief of the Law Review, he
practiced a number of years at two of Alabama's most
prestigious law firms, specializing in commercial and
employment litigation. He then served under our distinguished
colleague, Senator Jeff Sessions, in the Alabama Attorney
General's office as Deputy Attorney General in charge of civil
and constitutional matters. Without question, Attorney General
Pryor has the legal capacity to serve on the Eleventh Circuit.
Yet, Mr. Chairman, to my surprise, there are some
detractors here today. I am surprised not only because of
Attorney General Pryor's excellent qualifications but
especially given the ringing pledge of support from Thurbert
Baker, the Democratic Attorney General from my State of
Georgia. Attorney General Baker was first appointed in 1997 to
his position by then Governor of Georgia and now our esteemed
colleague, Senator Zell Miller. Attorney General Baker has
since been re-elected twice by the people of my State. He has a
perspective unique from any of those who oppose Attorney
General Pryor here today because he has worked right beside
Attorney General Pryor on issues of great concern to both our
respective States and to this Nation.
Attorney General Baker's support for Bill Pryor represents
the belief of the chief law enforcement officer of the State of
Georgia that this nominee possesses the qualities and
experiences needed to serve the people of Georgia on the
Eleventh Circuit.
In a letter written to Senators Sessions and Shelby,
Attorney General Baker had high praise for Mr. Pryor. I would
now like to share a few of those comments with the Committee.
Mr. Chairman, I also ask that Attorney General Baker's letter
be added to the record at this point.
Chairman Hatch. Without objection, it will be.
Senator Chambliss. In his letter, Attorney General Baker
states, ``Bill has distinguished himself time and again with
legal acumen that he brings to issues of national or regional
concern as well as with his commitment to furthering the
prospects of good and responsive government.''
Thurbert Baker also lauded Attorney General Pryor's
positions on crime, saying, ``Bill has made combating white-
collar crime and public corruption one of the centerpieces of
his service to the people of Alabama...Bill has fought to keep
law enforcement in Alabama armed with appropriate laws to
protect Alabama's citizens, pushing for tough money laundering
provisions and stiff penalties for trafficking in date rape
drugs.''
``Time and again as Attorney General, Bill has taken on
public corruption cases in Alabama, regardless of how well
connected the defendant may be, to ensure that the public trust
is upheld and the public's confidence in government is well
founded.''
Again I quote Attorney General Baker: ``He has always done
what he thought was best for the people of Alabama. Recognizing
a wrong that had gone on far too long, he took the opportunity
of his inaugural address to call on an end to the ban on
interracial marriages in Alabama law. Concerned about at-risk
kids in Alabama's schools, he formed Mentor Alabama, a program
designed to pair volunteer mentors with students who needed a
role model and an attentive ear to the problems facing them on
a daily basis.''
Again, Thurbert Baker concludes in his letter, ``These are
just a few of the qualities that I believe will make Bill Pryor
an excellent candidate for a slot on the Eleventh Circuit Court
of Appeals. My only regret is that I will no longer have Bill
as a fellow Attorney General fighting for what is right. But I
know that his work on the bench will continue to serve as an
example of how the public trust should be upheld.''
Mr. Chairman, those are not positions that people in the
Deep South necessarily have adhered to over the years, and I
think it is remarkable that a man of Attorney General Pryor's
stature would take on those tough subjects. And I could not
agree more with my State's Attorney General. A close review of
Attorney General Pryor's record demonstrates that he has been a
champion for justice.
In the area of crime prevention and administration of
justice in Alabama, Bill Pryor has been a fair and impartial
leader for all citizens of his State, making his decisions
based on the law and not politics. He has fought corruption by
cracking down on dishonest government employees of all
political ideologies. He established a new division in the
Attorney General's office designed to specifically investigate,
prosecute, and defend Alabamians from public corruption and
white-collar crime, problems that plague every single State. He
even secured the conviction and imprisonment of a Republican
former director of the Alabama Department of Transportation and
two lobbyists on bribery charges.
His crackdown on corruption in statewide politics was
saluted by the Montgomery Advertiser as having an ``absence of
partisanship'' as he had successfully targeted Democrats and
Republicans, blacks and whites, for ballot fraud.
In addition to working to eliminate corruption in Alabama,
Attorney General Pryor has been a staunch supporter of
reforming Alabama's criminal justice system to make it fairer
with heightened standards of honesty and compassion. He has
fought to modernize the State's criminal sentencing system by
instituting a State Sentencing Commission to ensure that
similar crimes result in similar punishments. He has advocated
and created alternative programs, such as drug courts and
substance abuse treatment, which emphasize victim resolution
and community restoration for first-time non-violent offenders.
He has endorsed the Prison Rape Reduction Act, sponsored by
fellow Judiciary Committee members Senators Kennedy and
Sessions.
Most importantly, Attorney General Pryor has made a
difference in the lives of countless young children in Alabama
by creating Mentor Alabama. This program is designed to reduce
juvenile crime by introducing adults into the lives of children
who need them most. Under Mentor Alabama, adult volunteers
serve as mentors, tutors, and role models. Mentor Alabama has
been so successful that it has been designated as the official
Alabama affiliate of the National Mentoring Partnership, a
partner of the America's Promise program founded by Secretary
of State Colin Powell.
Attorney General Pryor not only implements these society-
changing programs, he believes in them enough to get involved
at the ground level. To this end, he has personally served as a
mentor to a public school student in Montgomery for over 3
years.
As Attorney General, he has also been a champion for women
in the State of Alabama by dedicating himself to furthering the
case of women's rights and improving the lives of women. He has
sought to protect women from the scourge of domestic violence
while fighting to bring to justice those who would commit such
atrocities. He was a key proponent in the year 2000 when the
crime of domestic violence was enacted in Alabama.
General Pryor has advocated increasing the penalties for
repeat offenders who violate protection orders. Now in Alabama,
second-time offenders face a mandatory sentence of 30 days in
prison, and further violations will result in mandatory 3-month
prison terms. Attorney General Pryor supported passage of a law
that now requires that those arrested for domestic violence in
Alabama stay behind bars until the safety of the victim and
society can be assured.
In other efforts to improve the legal protections available
to women, Attorney General Pryor pushed to add the date rape
drug GHB to Alabama's drug-trafficking statute so that the
punishment would meet the crime. Attorney General Pryor has
also helped create innovative programs designed to improve the
lives of Alabama women. Using money awarded from the State from
a class-action settlement, he funded ``Cut It Out,'' a program
that helps encourage victims of domestic violence to seek help.
This program seeks to educate the very people who are often
confidantes for battered women, such as their hair stylists, on
how to spot abuse and help victims.
He has also been a dedicated supporter of Penelope House,
the first shelter designated for battered women and their
children in the State of Alabama. Last year, Attorney General
Pryor had the honor of being inducted into the Penelope House
Law Enforcement Hall of Fame in recognition of his fight
against domestic violence.
I have heard it argued that Attorney General Pryor is
against the voting rights of some people simply because he
disagrees with certain procedural provisions of the Voting
Rights Act. The truth about Bill Pryor and the voting rights
record is that he has done nothing but dutifully enforce all of
the Voting Rights Act. He has simply stated that there are some
procedural provisions in the Act that need fixing.
Well, I agree with that. The Attorney General of my State
agrees with that. And minority legislators in Alabama and
Georgia agree with that. Section 5 of the Voting Rights Act has
some serious problems that inhibit the very goal the Act was
designed to accomplish: the empowerment of minority voters. As
the head attorney for the State of Alabama, though, he is
constrained to enforce the law as it is written and interpreted
by the courts, and that is exactly what Attorney General Pryor
has done.
In conclusion, Mr. Chairman, Bill Pryor is a superb
candidate, graduating at the top of his class from Tulane Law
School, where he served as editor-in-chief of the Law Review,
the highest honor one can receive in law school. A fair review
of his record shows that he has used his gifted abilities to
serve the people of Alabama and this country. He will make an
excellent judge, and I am proud to support his nomination to
the Eleventh Circuit Court of Appeals.
Chairman Hatch. Well, thank you, Senator.
We have a vote on, so I am going to recess for about 10
minutes so I can get over and get back. And then we will turn
next to Senator Feingold, if he is available. But we will do
that when we get back, Senator. We are going to recess for
about 10 minutes.
[Recess 11:27 a.m. to 11:47 a.m.]
Chairman Hatch. Let's have order. We are going to turn to
Senator Feingold at this time.
Senator Feingold. Mr. Pryor, welcome, and thank you for
your testimony and your willingness to answer the questions.
In 1999, you helped found an organization called the
Republican Attorneys General Association, or RAGA, to promote
the election of Republican candidates for Attorney General, and
I understand you served as its first treasurer. After its
formation you gave a speech to the Steering Committee of the
Civil Justice Reform Group. You said, ``Two years ago, I warned
that the lawsuits filed by my fellow State Attorneys General
against the tobacco industry threatened the entire business
community.''
You went on to describe ``a growing number of novel
government suits against entire industries, no industry is
safe,'' you said.
You offered five ideas for those who want to curb this new
form of lawsuit abuse. Number five was the business community
must be heavily engaged in the election process as it affects
legal and judicial offices. You said, ``Frankly, this need is
the most important of all.''
You then hailed the newly formed RAGA and then said,
``Hopefully it will help elect more conservative and free
market-oriented Attorneys General.''
As I understand it, RAGA raised money from large corporate
donors and then sent those contributions to the Republican
National State Elections Committee, the RNSEC, which is a soft-
money fund run by the RNC for use in State Attorney General's
elections. I am concerned about involvement of the top law
enforcement officer of a State in this kind of an operation,
and I am not alone in that concern. A number of Democratic and
Republican State Attorneys General criticized your organization
as unnecessarily partisan, and some have characterized its
fundraising practices as fraught with ``ethical land mines.''
For example, Mike Fisher, the Republican Attorney General
of Pennsylvania, now a nominee to the U.S. Court of Appeals for
the Third Circuit, refused to join RAGA, saying he wanted to
keep politics out of his office. Despite these concerns, you
said, ``I am proud to support RAGA and it does not create a
conflict of interest.''
RAGA solicits financial contributions from large
corporations that may be subject to State investigations.
According to several news accounts, RAGA's contributors may
include Aetna, SBC, GTE, Microsoft, and many tobacco companies.
Yet RAGA has refused to disclose its contributors.
As Alabama Attorney General, you have asserted that your
office has sole authority to determine which lawsuits will be
filed on behalf of the State of Alabama. Consequently, one of
RAGA's contributors--the identity, of course, is concealed from
the public--could be under State investigation. You still have
the last word on whether a lawsuit will be filed against that
company.
Don't you agree that this scenario would present at least
the appearance of conflict of interest given your role in RAGA?
Mr. Pryor. No, Senator. I helped form a Republican
Attorneys General Association, as you mentioned, several years
ago. I no longer serve as an officer, but I did for several
years. There's now a Democratic Attorneys General Association.
We modeled our organization after the Republican Governors
Association and the Democratic Governors Association, both of
which work with each of the National Committees. And as a
political official, as an elected official who runs on a party
label, I have been active in helping my party elect other
candidates to office. I don't think that that creates a
conflict of interest. I can assure you that in no instance
would it in any way impair my judgment as Attorney General in
enforcing the law against any lawbreaker and ensuring that the
law is enforced. And it never has.
Senator Feingold. Well, let me reiterate my question. My
question was not whether it would simply create a conflict of
interest. It was whether it would create a conflict of interest
or an appearance of a conflict of interest. Is it your
testimony that undisclosed, large soft-money contributions to
this organization could not possibly create an appearance of a
conflict of interest?
Mr. Pryor. Well, first of all, the contributions that are
made are made to the Republican National Committee, not--they
were not made to a separate organization called RAGA. And every
one of those contributions, every penny, was disclosed by the
Republican National Committee every month.
I don't think that that creates any appearance of
impropriety, and I think that that's the obligation of the
political party, to comply with the campaign finance laws, to
make sure that the donations are properly disclosed. But it
does not in my judgment create an appearance of a conflict of
interest. After all, all of these State Attorneys General are
already raising campaign funds in races in their own States,
working with their own State political parties.
Senator Feingold. Our information is that there is a
different trail to the money and there is a direct connection
to RAGA, but we will pursue that with a written question. Let
me also assure you the mere fact that the Democrats also do it,
based on my 7 years of experience with soft money, is no
defense.
Despite RAGA's refusal to disclose its contributors, we do
know that soft money raised by RAGA and funneled to the
Republican National State Elections Committee was then used in
State campaigns in Alabama. In fact, the RNSEC made a
contribution of $100,000 to your own re-election campaign for
State Attorney General.
How do you reconcile RAGA's relationship with the RNSEC and
the RNSEC's contribution to your own campaign with your duty as
State Attorney General? Do you think it is appropriate for
Attorneys General to solicit funds or receive funds from
corporations who they may later have to investigate?
Mr. Pryor. Well, I wasn't receiving in that instance a
direct contribution, of course, from a corporation. I was
receiving it from the Republican National State Elections
Committee, just as I received contributions from the Alabama
Republican Party and from political action committees in my own
State. And it has never created a conflict of interest. If that
was--
Senator Feingold. This doesn't concern you at all in terms
of your role as Attorney General?
Mr. Pryor. The system that we have in America of elections
requires candidates to raise funds to wage campaigns. I have
done that, and I've disclosed every donation that my campaign
has ever received.
Senator Feingold. All right. Then will you provide to the
Committee a comprehensive list of RAGA's contributors and the
amounts and dates of their contribution?
Mr. Pryor. I don't have such a list, Senator.
Senator Feingold. Who does?
Mr. Pryor. The Republican National Committee.
Senator Feingold. Will you urge them to provide that list?
Mr. Pryor. I would ask you if you need that kind of list
that you really need to seek it from them.
Senator Feingold. I am asking whether you will help us as a
former treasurer of RAGA, an officer of RAGA, to receive this
information since you just stated that you were in favor of
full disclosure.
Mr. Pryor. I'm in favor of the full disclosure according to
the letter of the law.
Senator Feingold. You oppose the disclosure of this
information?
Mr. Pryor. I'm not saying that I oppose it or I favor it. I
support the Republican National Committee making its decisions
of what it has to do to follow the law.
Senator Feingold. I am taking this as a refusal to urge the
release of this information. And are you saying that you never
solicited a contribution for RAGA or the RNC to use in your own
campaign?
Mr. Pryor. To use in my own campaign?
Senator Feingold. Did you--
Mr. Pryor. No, Senator.
Senator Feingold. Are you saying that you never solicited a
contribution for RAGA or the RNC to use in your own campaign?
Mr. Pryor. I did ask the Republican National State
Elections Committee to contribute to my campaign. And they did.
Senator Feingold. In a recent brief to the Supreme Court,
you equated private consensual sexual activity between
homosexuals to prostitution, adultery, necrophilia, bestiality,
incest, and pedophilia. In addition, your office defended a
statute that denied funding to the Gay-Lesbian-Bisexual
Alliance, a student organization. The Eleventh Circuit
unanimously declared the statute unconstitutional.
Furthermore, as Deputy Attorney General you joined an
amicus brief in Romer v. Evana, arguing that local governments
in Colorado were prohibited from enacting laws to protect gays
and lesbians from discrimination. The Supreme Court later
rejected your view, but you called the decision
``undemocratic.'' News accounts also report that you even went
so far as to reschedule a family vacation at Disney World in
order to avoid Gay Day.
In light of this record, can you understand why a gay
plaintiff or defendant would feel uncomfortable coming before
you as a judge? And I would like to give you this opportunity
to explain why these concerns may or may not be justified.
Mr. Pryor. I think my record as Attorney General shows that
I will uphold and enforce the law. In the Lawrence case, the
first that you mentioned, I was upholding and urging the
Supreme Court to reaffirm its decision of 1986 in Bowers v.
Hardwick, which is the law of the land, and the argument to
which you referred, the slippery slope argument, was taken from
Justice White's majority opinion for the Supreme Court of the
United States.
In the second instance that you mentioned, the Eleventh
Circuit case involving university facilities and funds for
homosexual groups in Alabama, that argument was presented by
then Attorney General Jeff Sessions, not by me. And, in fact,
after the decision came down--by the time the decision came
down, I was Attorney General, but I did not file any papers to
quarrel with the decision because, in fact, I agreed with it.
When we worked together in the Attorney General's office, I
declined to participate in that case for General Sessions
because I had agreed with the district court ruling, and I
agreed then with the Eleventh Circuit ruling.
In the case of Romer v. Evana, General Sessions again was
the Attorney General at the time. I was his Deputy Attorney
General, but he was the one who made the final decision. I have
criticized the Romer decision.
As far as my family vacation is concerned, my wife and I
had two daughters who at the time of that vacation were 6 and
4, and we made a value judgment, and that was our personal
decision. But my record as Attorney General is that I will
uphold and enforce the law, particularly, as I mentioned in my
first example, in the Lawrence case, the brief that we filed
defending Alabama law which prohibits sodomy between unmarried
persons follows the Supreme Court's precedent.
Senator Feingold. Well, I certainly respect going to Disney
World with two daughters. I have done the same thing. But are
you saying that you actually made that decision on purpose to
be away at the time of that--
Mr. Pryor. We made a value judgment and changed our plan
and went another weekend.
Senator Feingold. Well, I appreciate your candor on that.
Mr. Pryor, you have criticized those--
Chairman Hatch. Senator, your time is up.
Senator Feingold. Thank you, Mr. Chairman.
Chairman Hatch. Then let's turn to Senator Sessions and
then Senator Kennedy.
Senator Sessions. To my colleagues, the comment that
General Pryor just made about the case involving the university
and homosexuality is a good example of his integrity and his
commitment to the rule of law. I do recall that we had a
statute that seemed to have validity that the district judge
had found unconstitutional. We discussed what to do about it.
Most Attorneys General use a test, Mr. Chairman, informally
called the throw-up test. You probably have heard of it. If you
can defend your State's law in court without throwing up, you
should do so. Somebody has to defend it. You are the chief
lawyer for the State. Nobody else has primary responsibility to
defend the law. So I decided we would at least take it up one
further step. Bill declined to participate because he didn't
agree with it. Of course, he was proven correct by the ruling
of the Eleventh Circuit.
Mr. Chairman, I would offer into the record a letter from
Mr. Chris McNair. He is an African-American leader in the State
of Alabama, a lifelong Democrat. He served in the Alabama House
of Representatives from 1973 to 1986 and served as a member of
the Jefferson County Commission--that represents Birmingham,
and is our largest county commission--until his retirement in
2001. His daughter, Denise, was one of the four young girls
that was murdered in the bombing of the 16th Street Baptist
Church. This important African-American Democratic official
writes in strong support for Bill Pryor for this position.
It has been suggested that your views are extreme, that
they are outside the mainstream. You have been connected to
positions of Governor James, which in fact you have resisted.
You have been connected to positions of Chief Justice Roy
Moore, many of which you have not endorsed and, in fact, have
opposed.
I would like to talk to you about a very contentious issue
that arose in the State involving the districting of the State
legislature. Republicans have elected the Governor, two
Senators, five out of seven Congressmen, but only about a third
of the State legislature are Republicans. The Republicans are
convinced that part of that is the way the district lines are
drawn. So a group of Republicans came up with an argument to
get those lines redrawn, and they sought your support,
conteding that they had some basis for their legal position.
We saw recently in Texas what happens when you start
dealing with district lines and how important that can be in a
political environment.
I would like for you, Attorney General Pryor, to say what
you told to some of your friends and some of my friends about
your views on that lawsuit they wanted to bring and, in fact,
did bring.
Mr. Pryor. Well, the process of redistricting, Senator, as
you know, is an inherently political one. But the politics of
redistricting are irrelevant to me in my capacity as Attorney
General in representing the State's election officials. And
when our State legislature redistricts itself and draws
Congressional district lines and draws lines for the State
Board of Education, it's my responsibility to meet what you
described as the throw-up test, and that is, to defend those
districts if an argument can be made in their defense.
I felt strongly, though, that in this instance--really, two
separate occasions, both district lines that were derived in
the 1990's following the 1990 census, and then again a series
of litigation following the 2000 census, there was
redistricting litigation. In each instance, I felt very
strongly that there were meritorious defenses to be presented
by the State that would defeat the claims of the Republican
plaintiffs.
In the 1990's era, there was a case called Sinkfield v.
Kelly. I had argued that--there were white plaintiffs
complaining about alleged racial gerrymandering of black
districts in which they did not reside. The district court, a
three-judge district court, ruled in favor of the Republican
plaintiffs and white plaintiffs on a couple of--several of the
districts. But I believed that under Hayes v. United States
that they lacked standing to bring that lawsuit, that there was
a fundamental jurisdictional defense to be presented. And I
took that argument to the Supreme Court of the United States,
and they unanimously agreed with our argument and reversed the
district court.
Following the 2000 census, lawsuits were filed challenging
the new district lines. We obtained the preclearance of all of
those district lines. My office was responsible for the
preclearance process, and we obtained preclearance from the
Justice Department of all the districting plans. And then we
defended Congressional school board and legislative district
lines in court, and all of those district lines have been
upheld by the Federal courts.
Senator Sessions. As a practical matter, as Attorney
General you felt it was your duty to defend the law. But, in
fact, the way it turned out, the African-American community,
they were supporting your position, which was contrary to the
position of the Republicans.
Mr. Pryor. Oh, absolutely. In the Sinkfield case, the NAACP
was alongside in our position filing their own brief, making
the same arguments that we were making. And, yes, the
legislature, as it has to do under the Voting Rights Act, had
drawn majority-minority districts. That is how we obtained
preclearance of those districts under the Voting Rights Act,
and I, of course, defended those as the law required.
Senator Sessions. Mr. Chairman, just to follow up on that
comment, people were really intense about that matter. I was
called by State legislators, Republicans, who said, ``Bill used
to work for you. You go tell Bill he ought to do thus and so.''
And I remember telling them then what I will now tell this
Committee, and these were almost my exact words: ``If you have
got a case that convinces Bill that he is wrong on the law,
present it to him. If you don't, no need to talk about it
because if he is convinced the law is contrary to your
position, he is not going to change, and I am not going to ask
him to.'' So that is the way he does business.
That was an example where you utilized a defense of
standing. Is that correct?
Mr. Pryor. That's right.
Senator Sessions. To block the lawsuit, to favor the
Democratic African-American position against the Republicans,
that is what Attorneys General do. They just have to defend the
law of the State in a number of different ways.
I would yield back my time.
Chairman Hatch. Well, thank you, Senator.
We will turn to Senator Durbin now.
Senator Durbin. Thank you very much, Mr. Chairman.
General Pryor, thank you for being here. A number of people
have characterized your political philosophy. How would you
characterize it?
Mr. Pryor. I'm a conservative.
Senator Durbin. Do you consider yourself a moderate
conservative or one who is more conservative than most? Put
yourself on the spectrum.
Mr. Pryor. Well, Senator, that's a difficult thing to do.
In Alabama, I think sometimes I'm called a moderate.
[Laughter.]
Senator Durbin. That comes as no surprise.
Let me ask you on the issue of States' rights. Throughout
your career you have argued very strongly for the issue of
States' rights. I think of the employment discrimination case
that you were involved in, the Garret case, as well as the
decision relative to the Violence Against Women Act. Where
would you put yourself in terms of believing in the concept of
States' rights as opposed to Federal authority?
Mr. Pryor. I believe in the Constitution of the United
States, Senator. I don't particularly like the term ``States'
rights.'' I can't say I've totally avoided it in my political
career. But much more often than not, I refer to federalism. I
believe in a balance of Federal and State power. I've expressed
that perspective on a number of my writings and speeches. In
the cases that you mentioned, the federalism perspective that I
offered in Garret and in the Violence Against Women Act was the
position that the Supreme Court of the United States sustained,
and it's their responsibility to uphold the Constitution.
Senator Durbin. When I recently visited your State for the
first time with Congressman Lewis of Georgia to look at
Birmingham and Mobile and Selma, some of the civil rights
shrines, I was told by Congressman John Lewis about Judge Frank
Johnson, a Federal judge from Alabama, a Republican, appointed
by President Eisenhower, who, according to John Lewis, has not
received the credit he deserved because he had the courage to
stand up against States' rights and even against some members
of his own Federal judiciary, believing that there were more
important issues at stake in terms of civil rights.
Tell me how you view Frank Johnson, civil rights, and the
fact that traditionally States' rights have been used to
justify discrimination, particularly during the civil rights
era and when it comes to questions like disabled Americans and
their rights. Do you view States' rights as often being the
shelter that people who want to practice discrimination rush
to?
Mr. Pryor. There's no doubt in the history of the United
States, from John C. Calhoun to George C. Wallace, the mantra
of States' rights has been used as an illegitimate defense of
evil, frankly, of racial discrimination in more modern times
and slavery in earlier times.
I think Judge Johnson is a hero. The Federal courthouse in
Montgomery a few blocks from where I work is now named after
him, thanks to the Congress of the United States. I had the
privilege of working, of clerking for another hero of the Deep
South, a Republican who was appointed also by President
Eisenhower to the Fifth Circuit Court of Appeals. I clerked for
John Minor Wisdom. I'm proud that I clerked for him, especially
because of his record on race and especially because he
recognized the difference between what the Constitution
requires in a balance of Federal and State power and the flawed
and totally discredited and rightly discredited views of
nullification and interposition that were advocated by Southern
populists back in the 1950's and 1960's.
Senator Durbin. Well, General, let me just ask you then:
Let's fast forward from an easy chapter in history, which many
of us either just read about or witnessed, to the more
contemporary challenges. Can you understand the anxiety and
fear that many people have when they hear you argue about the
fact that this is a Christian Nation and the many positions you
have taken relative to the assertion of the Ten Commandments in
a public setting and statements that are made. I am Christian
myself, but I can understand how people who are not would feel
that this is a form of discrimination against them. And I would
ask you, how do you reconcile then your admiration for Frank
Johnson's courage to stand up against discrimination against
people of color and the fact that you seem to have an
ambivalence when it comes to the whole question of asserting
the rights of those who don't happen to be Christian to
practice their religion in this diverse Nation.
Mr. Pryor. I have never used the term ``Christian Nation.''
I have said that this Nation as founded on a Christian
perspective of the nature of man, that we derive our rights
from God and not from government. And part of that perspective
is that every individual enjoys human rights without regard to
what the majority wants. Every individual enjoys human rights,
like religious freedom and freedom of conscience, including the
freedom not to worship.
That is what I have said. That's what I believe in. That
goes to the core of what I believe in. It is, I believe, the
perspective of the American form of government, and I have been
faithful in my record as Attorney General in defending the
Constitution when it comes to issues like religious freedom.
In the area of school prayer, when the Governor who
appointed me was arguing that teachers should be able to lead
prayer, I was the one taking the legal position in the State of
Alabama that school-sponsored religious expression is
incompatible with the First Amendment and that instead the
Federal courts had overstepped their bounds in one regard in
censoring genuinely student-initiated religious expression,
because those children derive their right to pray genuinely on
their own from God.
Senator Durbin. But let me just ask you, you seem to state
that--you just noted the historical connection between the
Founding Fathers and Christian faith. But you went further than
that. You have said, ``The challenge of the next millennium
will be to preserve the American experiment by restoring its
Christian perspective.''
What I am asking you is: Do you not understand that that
type of statement in a diverse society like America raises
concerns of those who don't happen to be Christian, that you
are asserting an agenda of your own, a religious belief of your
own, inconsistent with separation of church and state, which we
have honored since the beginning of this Republic?
Mr. Pryor. No, Senator, I think that would be a
misunderstanding if someone came away with that impression. It
goes to the core of my being that I have a moral obligation
that is informed by my religious faith to uphold my oath of
office, to uphold the Constitution of the United States, which
protects freedom of religion and freedom of religious
expression. My record as Attorney General has been just that.
When the Supreme Court of the United States struck down the
Religious Freedom Restoration Act in the Bourne decision, I
worked with a broad cross-section, liberals and conservatives,
in Alabama to adopt our own religious freedom amendment to the
Constitution of Alabama modeled after RFRA.
When the City of Huntsville tried to use its zoning
ordinances to curtail what I thought was legitimate activity of
a synagogue in Huntsville, I intervened as a friend of the
court on their side because I thought their argument was
supported by the religious freedom amendment to the
Constitution of Alabama for which I had campaigned.
I think it would just be a misunderstanding to come away
with that impression. My perspective is one that a Christian
perspective of the nature of man is that every person enjoys
freedom of conscience and freedom of religion, which, of
course, is protected by the First Amendment to the
Constitution.
Senator Durbin. General, unfortunately, we have a limited
amount of time, and I can't follow up because you clearly have
opened up a long series of questions related to the
Establishment Clause. It is one thing to say that we have the
freedom to practice. It is another thing to say that we condone
by government action certain religious belief or, in fact,
propose or promulgate that belief. And I am going to save those
for written questions, but let me go to a more specific area in
the limited time that I have remaining.
Are you a member of the National Rifle Association or its
board of directors?
Mr. Pryor. The National Rifle Association? I'm a member of
the National Rifle Association. I am not a member of its board
of directors.
Senator Durbin. Are you familiar with the case of United
States v. Emerson?
Mr. Pryor. Yes.
Senator Durbin. Which was filed in Texas, the case
involving Timothy Joe Emerson, the subject of a domestic
violence restraining order prohibiting him from threatening his
wife or daughter or causing them bodily injury, and under
Federal law he was prohibited from possessing a firearm because
he was under this restraining order against domestic violence;
and that although this was a Texas case being decided by the
Fifth Circuit, you decided to file an amicus brief on behalf of
the people of the State of Alabama in support of Timothy Joe
Emerson being allowed to carry a gun. Can you explain why you
went out of your way to say that a man that is under a
restraining order for domestic violence who would threaten the
life of his wife or former wife's boyfriend should be allowed
to carry a gun?
Mr. Pryor. I was arguing a position to get the Fifth
Circuit in that case to look at the Federal statute itself and
avoid the question that the district court had ruled upon. The
district court dismissed the indictment of that individual on
the basis of the Second Amendment, claiming that the Federal
law in question was unconstitutional under the Second
Amendment.
There were some confusing aspects to the Federal statute in
question that I thought the court ought to look at. The court
ended up looking at that and rejected my argument. But I had
urged the court to--if my argument had prevailed, to avoid the
question of a Second Amendment defense.
Senator Durbin. Should he have been allowed to carry a
firearm if there was a domestic violence restraining order
against him for threats to his wife and daughter and the
boyfriend?
Mr. Pryor. The law should be enforced against him if he has
violated it. It was not clear to me from the text of the law
that he had. If it had been and this Congress had made that
clear, then absolutely, it should have been enforced and he
should be punished.
Senator Durbin. Is it customary for the Attorney General--
Chairman Hatch. Senator, your time is up.
Senator Durbin. If I could ask one last question? Is it
customary for the Attorney General of the State of Alabama to
file this kind of brief in a case involving Texas?
Mr. Pryor. We file as State Attorneys General amicus briefs
in courts of appeals and the Supreme Court of the United States
routinely. The Federal Rules of Appellate procedure give us a
right to do so without permission.
Senator Durbin. Thank you very much.
Thanks, The Chairman.
Chairman Hatch. We will go to Senator Kennedy.
Senator Kennedy. Thank you, Mr. Chairman.
In your brief, General Pryor, you included the words ``a
sweeping and arbitrary infringement on the Second Amendment
right to keep and bear arms and a provision that is massively
overbroad in its prohibition of firearms ownership.'' You
weren't interested in the technicalities of sending this back.
You were stating what your position is with regards to bearing
arms. Isn't that true?
Mr. Pryor. No, Senator, that's not--
Senator Kennedy. Well, you had that in your brief,
nonetheless, and in response to the question of Senator Durbin,
``a sweeping and arbitrary infringement on the Second Amendment
right to bear arms and a provision that is massively overbroad
in its prohibition of firearms ownership.'' That is what you
were really concerned about.
Mr. Pryor. I'd be happy to look at the brief itself,
Senator, to see what you're reading from. I know for a fact,
though, that the argument that I presented to the Fifth Circuit
was that they should avoid the question of the Second Amendment
defense that had been relied upon by the district court.
Senator Kennedy. Well, I think a fair reading of the brief
would include that as only a partial rather than the central
thrust of the position.
Let me say, General Pryor, all of us are impressed about
your background and about the success that you have had in the
private sector and also in the political sector, and obviously
you bring a great deal of energy and talent to this particular
position that you have at the present time, and we congratulate
you on the nomination.
Now, having said that, I think we have a very important
responsibility to make sure that anyone that is going to serve
on the courts is committed to the core values of the
Constitution. And the way we do that, as you understand, is
through this process and also reviewing the statements and
comments that you have made. And over the period of time we
have had a number of nominees who have been very effective
advocates for positions that we differ with but have been
approved by the Senate and who we have voted for.
I think the very legitimate issue in question with your
nomination is whether you have an agenda; that many of the
positions which you have taken reflect not just an advocacy but
a very deeply held view and a philosophy, which you are
entitled to have. But you are also not entitled to get
everyone's vote. If we conclude--in any particular vote we have
a responsibility not to just be a rubber stamp for the
Executive, but to make an independent judgment whether you have
the temperament and also the commitment to interpret the law
and also to enforce the law.
And I am troubled by these series--with the time that we
have, the series of statements and all that they mean in terms
of their significance on the public policy issues that are
central to constitutional values. Your statements talk about
the need to limit the power of Congress to remedy civil rights
violations, restrict a woman's right to choose, uphold gay
rights, restrict the rights of religious minorities, and reduce
the separation of church and state. And many of your statements
make clear that you want to roll back constitutional doctrine
in a range of areas to fit your agenda.
So I don't understand looking at your record how one can
conclude that you don't have an agenda. What concerns me is not
simply that you have been an advocate, but that you are an
advocate so extreme about so many core Federal and
constitutional rights, that you are hostile, to so much that
are existing law and that your statements at times are so
intemperate that I don't know how you would be able to put that
aside and be fair as a judge.
Earlier in the hearing, you were asked about why you said,
``Please, God, no more Souters.'' And I don't know that you
adequately explained, but it seems to me that you made these
statements about Justice Souter not simply because you
disagreed with him on the two opinions. I know in earlier
responses to Senator Schumer you indicated that you disagreed
with him on two opinions, on the Violence Against Women and
Bush v. Gore.
But isn't the real reason behind that statement because he
was a Republican appointee whose ideological views as a Justice
have not been to your liking? Isn't your concern that he has
not voted to limit Congress' power to provide remedies for
violations of civil rights the way you expected, the way that
you had expected a Republican nominee to rule?
Mr. Pryor. I said earlier, Senator, that I have disagreed
with Justice Souter's opinions in several cases, not just the
two. The question was asked why did I pick Souter in those two
instances. Well, he had written opinions in each of those
instances. But there's no question that in several cases in
which my office has either been a party or an amicus, Justice
Souter has almost always been on the other side. And that's the
reason I made this statement.
Senator Kennedy. Because of your differences with Justice
Souter, your ideological differences.
Mr. Pryor. I've criticized his rulings. I've been open
about it. I've had disagreements with his rulings.
Senator Kennedy. Now, in the same speech, you also said we
are one vote away from the demise of federalism. This term the
Rehnquist Court issued two, you characterized, ``awful
rulings'' that preserve the worst examples of judicial
activism, Miranda v. Arizona and Roe v. Wade. So your
characterizations of the Miranda case and also the Roe case, in
this term, are two awful rulings that preserve the worst
examples of Roe v. Wade.
Later on in the issue about the stay of execution in the
electric chair case, which we will come back to, you actually
ridiculed the Supreme Court of the United States by saying,
``This issue should not be decided by nine octogenarian lawyers
who happen to sit on the Supreme Court.'' That is on the
question about the use of the electric chair in Alabama.
And then on a case involving children's rights, you said,
``My job was to make sure the State of Alabama isn't run by a
Federal court. My job isn't to come here and help children.''
Let's get to the issue on the electric chair. As I
understand, by 2000 Alabama was one of the only States in the
Nation that used the electric chair as the sole method of
execution. After the Supreme Court had granted review in a case
to determine the constitutionality of Florida's electric chair,
Florida changed its law to provide for lethal injection. The
Georgia Supreme Court ruled in 2001 that its use of the
electric chair constituted cruel and unusual punishment. In
February, the U.S. Supreme Court issued a stay of an execution
for an inmate, Robert Tarber. Tarber had appealed his death
sentence on the ground that Alabama's use of the electric chair
violated the Eighth Amendment, and by a vote of five to four,
the Supreme Court ultimately allowed Tarber's execution to
proceed.
Before that happened, however, you made the following
statement: ``This issue should not be decided by nine
octogenarian lawyers.''
Do you think that is an appropriate way to refer to the
Supreme Court of the United States?
Mr. Pryor. It was probably over-heated political rhetoric
on my part, Senator.
Senator Kennedy. What was over-heated? What were the
circumstances that would get you over-heated where you would
make that kind of a comment?
Mr. Pryor. I don't remember the exact context. I'm a
political figure, and I know it was not a statement that I made
in any court of law and would not have made in any court of
law.
Senator Kennedy. Well, it is entirely improper, is it not?
Mr. Pryor. I think that was over-heated.
Senator Kennedy. Well, it is improper. Either over-heated
or not over-heated, it is improper, is it not?
Mr. Pryor. I think it was an inappropriate remark, Senator.
Senator Kennedy. You are familiar with the case--in 2002
you authored an amicus brief to the Supreme Court arguing that
the Court should not hold that the execution of mentally
retarded persons does not violate the Eighth Amendment. In its
decision in Atkins v. Virginia, the Court rejected your
argument by six to three. Just last month, a panel of the
Eleventh Circuit unanimously stayed the execution of Alabama
prisoner Glen Haliday over the strong objections of your
office. Finding it a reasonable likelihood that Haliday is
mentally retarded, the Eleventh Circuit concluded that pursuant
to the Supreme Court ruling in Atkins, he should be allowed to
file a second habeas corpus petition, raising this claim. The
Eleventh Circuit specifically rejected your argument that
Alabama's interest in executing Haliday outweighs his interest
in further proceedings.
Mr. Pryor. That's true, Senator, and we--
Senator Kennedy. You believe the Eleventh Circuit was wrong
to stay Haliday's?
Mr. Pryor. I haven't really formed a judgment about that
because I haven't read in detail that--it was a very recent
ruling. I would say, however--
Senator Kennedy. Well, that should make it easier for you
to remember. You don't remember the issue on the execution of a
mentally retarded person and your intervention and your
characterization?
Mr. Pryor. No, Senator, the question, as I understood it,
was whether I agreed with the ruling or not. I have not read
that recent Eleventh Circuit ruling in detail. I know that
we're now going forward--
Senator Kennedy. You agree with its outcome, its
conclusion.
Mr. Pryor. I don't know. We're going forward with an
evidentiary hearing where we're going to determine whether Mr.
Haliday is mentally retarded or not and subject to capital
punishment or not.
Senator Kennedy. This is amazing that you are effectively
ducking that. I don't mind people that duck, but, you found
enough that you wanted to intervene in this case. You filed an
amicus brief. You didn't have to. You were interested enough in
the case to have filed an amicus brief about the execution of a
retarded individual. And now the Eleventh Circuit found that
Haliday scored 65 on his IQ test. The trial court had
instructed the jury to consider mental retardation as
mitigating evidence during the penalty phase. The prosecution
noted Haliday's mental retardation during its closing argument.
Given these remarkable facts and the Supreme Court's
decision in Atkins, how in the world would you be out there to
prevent Haliday from litigating his rights and his claim?
Mr. Pryor. Haliday is litigating his rights, Senator, and
he is going to be given an evidentiary hearing to determine
whether he's mentally retarded or not.
Senator Kennedy. Well, what do you think about 65 on an IQ
test?
Mr. Pryor. I don't know that that is a proper measurement
of his IQ. The lawyers on my staff--
Senator Kennedy. Well, if it is--
Mr. Pryor. --have said it's not.
Chairman Hatch. Let him answer the question.
Senator Kennedy. Well, I--
Chairman Hatch. Let him answer.
Mr. Pryor. The lawyers on my staff have informed me that
they don't believe it is based on the record.
I'm an active, engaged Attorney General, Senator, but I
will admit to you that I don't read every page of every brief
that's filed by my office. Now, the Atkins brief is one with
which I'm very familiar with and am prepared to defend what we
argued in that case. But in Haliday, the ruling that came down
from the Eleventh Circuit, I have not had the time to study in
detail.
Chairman Hatch. Senator, your time is up.
Senator Kennedy. Well, my time is up. I will file
additional questions.
Chairman Hatch. Senator Kyl?
Senator Kyl. Thank you, Mr. Chairman, and I would like
consent to file a statement for the record as part of my
presentation.
Chairman Hatch. Without objection, we will put it in the
record.
[The prepared statement of Senator Kyl appears as a
submission for the record.]
Senator Kyl. Mr. Attorney General, there have been some
very serious charges made against you, some by people not on
the dais but by interest groups who oppose your nomination. One
is a well-known group, People for the American Way, some of
whom are in the audience. They have a press release they have
put out: ``News, news, news. William Pryor unfit to judge.'' I
don't know, maybe you have seen it. But it contains some very
serious allegations.
Let me just read one paragraph and then ask you about four
specific allegations that they make here. I would like to know
whether they are true or not.
Among the other things, to kind of set the stage, they say,
```What can President Bush be thinking?' asked Neas.'' That is
Ralph Neas, the head of the organization. ``Maybe President
Bush thinks Bill Pryor will make other far-right judicial
nominees look tame. Maybe he thinks any Supreme Court nominee
will look good in comparison. Or maybe Pryor is this month's
political protection payment to satisfy the demands of the
religious right political leaders and their allies who are
constantly on guard for any signs of moderation.''
That kind of sets the stage for their point of view. But
they make these very serious charges. The first has to do with
amicus curiae briefs, and Senator Kennedy referred to one. For
those who aren't familiar with it, the amicus brief is a brief
that you file not if you are a party but if you are not a party
to the case, and the courts frequently accept them, sometimes
do, sometimes don't.
But here is the charge that they make about you, and I want
to know whether this is really true: that you promote your
position ``not only through litigation in which Alabama is a
party''--and I am quoting now--``but also by filing amicus
curiae briefs in cases in which Alabama was not involved and
Pryor had no obligation to participate.''
Is that really true?
Mr. Pryor. Yes, Senator, that is true. I have on a number
of occasions filed friend of the court briefs. The Supreme
Court of the United States, of course, gives every State
Attorney General an automatic right to do so on the presumption
that the perspectives we can offer in those cases that come
before them would be helpful to the Court in resolving the
controversies.
Senator Kyl. Do you know of any cases in which the Court
has, at least in part, accepted views that you have presented
in those briefs?
Mr. Pryor. Yes. in fact, Senator, there have been several
occasions when I have filed an amicus brief and the Court
agreed with me. Of course, there have been some where they
disagreed with me. If you're an active litigator, you get both
kinds of notches on your belt.
But in the case, for example, of Morrison where I argued
that one part of the Violence Against Women Act was beyond the
power of Congress, the Supreme Court agreed.
In the migratory bird rule case where I argued that the
Clean Water Act was properly interpreted only to apply to
interstate waters, the Supreme Court of the United States
agreed.
Most recently, in California v. Ewing, the three-strikes
case, I filed an amicus brief on behalf of many States, and the
Supreme Court agreed and reversed the Ninth Circuit. In fact,
the National Association of Attorneys General tomorrow will
award my office the Best Brief Award, one of their Best Brief
Awards, for that amicus brief.
Senator Kyl. Well, congratulations. Incidentally, there has
been some question about the legal position taken in the
Violence Against Women Act litigation, which, I remind people,
upheld your point of view against the political desires of a
lot of people, but at least from a legal position obviously you
are correct.
But did the legal position that you took in that case
affect your personal views with respect to the need to protect
women from violence?
Mr. Pryor. Oh, absolutely not. My personal views, if
anything, run contrary to what I thought the proper legal
argument was. I have on many occasions worked hard with
advocates in Alabama to strengthen our laws, to add GHB, a
dangerous date rape drug, to the list of controlled substances
in Alabama, to enact a State domestic abuse law. I've worked
with Penelope House out of Mobile, Alabama, which is a shelter
for battered women and children, and promoted their work and
helped them with their work.
I think the Violence Against Women Act is an important law.
As an Attorney General, as a member of the National Association
of Attorneys General, I have voted for resolutions urging
Congress to reauthorize the law. I think it's important that
you've provided resources to help Federal and State prosecutors
do their job. But I did think that one provision of that law
was unconstitutional. I so argued in an amicus brief, and the
Supreme Court agreed.
Senator Kyl. Well, thank you. I guess on the first charge
that you filed amicus briefs on, you do stand guilty as
charged. I would like to see whether you are guilty of this
second charge.
I am quoting exactly: ``Pryor is also a frequent public
speaker whose speeches make clear that the ideological
positions he has taken in these cases are his own.'' Meaning, I
guess, you are not a hypocrite, anyway. Is that true that you
are a frequent public speaker?
Mr. Pryor. I am a frequent public speaker, Senator.
Senator Kyl. And that the speeches you make are consistent
with your ideological positions?
Mr. Pryor. I try to be honest in my speeches, Senator.
Senator Kyl. Guilty as charged.
There is another one here. You actually believe in
federalism. Is that true?
Mr. Pryor. That is true.
Senator Kyl. Can you defend that?
Mr. Pryor. I believe I can. On many occasions when I have
made federalism-based arguments in the Supreme Court of the
United States, the Supreme Court has agreed with our argument
because I think it's a central feature of our Constitution to
balance the power of the Federal and State governments.
Senator Kyl. Maybe some folks need to go back and look at
the Constitution and see whether that defense is an appropriate
defense.
Let me ask one more, and I am quoting again: ``He
personally has been involved in key Supreme Court cases that,
by narrow five-to-four majorities, have restricted the ability
of Congress to protect Americans' rights against discrimination
and injury based upon disability, race, and age.'' Meaning, in
other words, that you were involved in cases where your
position was accepted by the Court as correct by five-to-four
majorities that had the effect in their opinion of doing these
things. Is it true that you have been involved in Supreme Court
cases that you have won?
Mr. Pryor. Yes, it is true. On several occasions.
Senator Kyl. Well, I guess you stand guilty as charged. We
will have to take that into consideration.
Let me close with one other thing. There have been a lot of
letters filed on your behalf, one that struck my interest from
Hon. Sue Bell Cobb, Judge of Alabama Court of Criminal Appeals.
Here is part of what she wrote in January of this year: ``I
write, not only as the only statewide Democrat to be elected in
2000, not only as a member of the Court which reviews the
greatest portion of General Pryor's work, but also as a child
advocate who has labored shoulder to shoulder with General
Pryor in the political arena on behalf of Alabama's children.
Bill Pryor is an outstanding Attorney General and is one of the
most righteous elected officials in this State. He possesses
two of the most important attributes of a judge: unquestionable
integrity and a strong internal moral compass. Bill Pryor is
exceedingly bright, a lawyer's lawyer. He is as dedicated to
the rule of law as anyone I know. I have never known another
Attorney General who loved being the people's lawyer more than
Bill Pryor. Though we may disagree on an issue, I am always
confident that the position is a product of complete
intellectual honesty. He loves the mental challenge presented
by a complex case, yet he never fails to remember that each
case impacts people's lives.''
What I was curious about, what I found arresting by that,
was her reference to your work on behalf of children. And I
would like to ask you to expand on that, if you could a bit.
Mr. Pryor. Thank you, Senator. Judge Cobb and I have been
partners in a project known as Children First. She is the Chair
of the Children First Foundation in Alabama, and I have the
privilege of serving as the Vice Chair of that foundation.
And what we have worked to do in a nutshell over the last
several years is to devote more of our State's resources to
programs to help at-risk children, whether it's juvenile
justice programs that are proved to work, whether it's
alternative schools to remove troubled youths from the regular
school environment to help promote a safer learning environment
in the regular schools, but also to give more intensive help to
kids who are having difficulty in regular schools, children's
health insurance, just a number of issues. And we have been
partners in that enterprise.
We do not always agree. We sometimes have our political
differences. But we have worked in a bipartisan effort. It has
been a very successful one in Alabama. There are times when I
have had members of my own party disagree with the work that we
were doing, but I'm proud of the success that we have enjoyed
with Children First.
Senator Kyl. Well, thank you, General Pryor. And just let
me say that not only, I think, have you demonstrated the
intellectual ability, the experience, and the temperament to be
a fine judge, but your candor, your willingness to confront a
somewhat hostile dais here, I think, is another indication of
the fact that you will be a fine judge and that my colleagues
ought to confirm the nomination that President Bush has made.
Thank you.
Chairman Hatch. Thank you, Senator.
We will turn to the distinguished Democratic leader on the
Committee, Senator Leahy.
Senator Leahy. Thank you, Mr. Chairman.
Chairman Hatch. Senator, as I understand it, unless there
is someone else who wants to question. Okay. All right.
Senator, go ahead. I will tell you when we will reconvene as
soon as you finish.
Senator Leahy. Thank you, Mr. Chairman. To answer one of
the questions whether you speak out on a lot of things, I would
assume as the Attorney General in elective office that that
would be only natural. I can't think of an Attorney General in
the country who wouldn't. And there is no criticism of you for
doing that.
We did, however--and Senator Kennedy raised your quote in
the Montgomery Advertiser, speaking about the electric chair
and whether it is an unconstitutional method of execution, you
said, ``This issue should not be decided by nine octogenarian
lawyers who happen to sit on the U.S. Supreme Court.'' And I
understand these questions--I mean, you seem to find it
amusing. Did I misinterpret the smile on your face during that
time? I mean, do you think this is an amusing description of
the Supreme Court?
Mr. Pryor. No, Senator. I said I thought it was
inappropriate, and the reason I thought it was inappropriate
was the use of the term ``octogenarian.'' I stand by my
statement, however, that I don't think the Supreme Court of the
United States should have been the arbiter of the method of
capital punishment in Alabama. I don't believe that that method
of capital punishment violated the Eighth Amendment. That's the
position we took in Federal courts. But we have since changed
that method of execution, and I helped change it.
Senator Leahy. Do you have any question, though, whether
the Supreme Court has the authority to decide that issue?
Mr. Pryor. Of course not, Senator.
Senator Leahy. Okay. You testified in July 2001 before this
Committee on the subject of appointed counsel in capital cases.
In your testimony, you quoted then professor, now Federal Judge
Paul Cassell for the proposition that, ``The death penalty
system in America is the most accurate criminal sanction in the
world.''
There have been about a dozen death row inmates that have
been exonerated and released. They found they had the wrong
person, some within days of their execution time. In Arizona,
for example, Ray Krone was released from prison after DNA
testing showed he did not commit the murder, the murder he had
been convicted for 10 years before. And the local prosecutor
said that Mr. Krone ``deserves an apology from us, that's for
sure. A mistake was made here. An injustice was done, and we're
sorry.''
Had he not been successful in getting hold of the DNA
results, he would have been executed. Interestingly enough, the
DNA, when they did get it, found that it pointed the finger at
the person who did commit the murder.
I look at well over a hundred in the past few years who
outside of the criminal justice system, either because of
journalism students or others, were found not to be guilty of
the crime they were charged with. Do you still think that the
death penalty system in America is the most accurate criminal
sanction in the world?
Mr. Pryor. I agree with Professor Cassell's judgment that
the system of capital--
Senator Leahy. What is your judgment? I mean, we have
confirmed Professor Cassell. I actually voted for him. I
disagree with him on this particular point, but what is your
judgment?
Mr. Pryor. My judgment is that the system of capital
punishment has extraordinary safeguards, many safeguards to
ensure that we review every death sentence to ensure that,
number one, we're executing only the guilty; number two, that
it's free from discrimination; and, number three, that it's in
cases of extreme and heinous crimes.
There's no question that that system catches errors. That's
what the system is supposed to do.
Senator Leahy. Do you think that there have been--do you
think there have never been people executed who were innocent?
Mr. Pryor. I'm not aware of any case, since the death
penalty was reinstated after the Furman decision by the Supreme
Court of the United States in the late 1970's, where an
innocent person has been executed. If someone has a case that
they would like to present to me, I would certainly review it
objectively. But I'm not aware of one.
My own experience tells me, though, with the--I think it's
now 14 executions that we have had in Alabama in my
administration, that all of those were cases of extreme crimes
and evidence of overwhelming guilt.
Senator Leahy. I am not questioning the heinousness of some
of the crimes. I am questioning the fact that we have well,
over 100 people, some of whom were found not by the criminal
justice system, not by the kind of checks and balances you are
referring to, either by somebody--I mean, in one case a group
of college students who had taken an elective course on
journalism, and then got heavily involved and found they had
people on death row, some within days of being executed, and
they found them and found gross mistakes, errors by the police,
coverups within the criminal justice system. Most of Alabama's
death row inmates were convicted and sentenced before 1999 when
compensation of the appointed lawyers was capped at $1,000 per
year. Do you really think that you can get adequate
representation in a capital case where compensation is capped
at $1,000?
Mr. Pryor. I am proud that our State increased the
compensation--
Senator Leahy. I am talking about before 1999.
Mr. Pryor. Because I don't think that compensation was
adequate, Senator. Does that mean, though, that the criminal
defense lawyers who took on the responsibility by court
appointment to zealously represent a capital defendant did an
ineffective job? No, not at all.
Senator Leahy. So you are convinced that all those cases,
many awaiting execution now, where it was capped at $1,000,
that in every single one of those cases there was effective
representation?
Mr. Pryor. No, Senator. There were certainly cases, and we
have procedures available in the courts to determine those
cases, where there was ineffective assistance of counsel, and
there have been findings by courts that there were, in fact,
instances of ineffective assistance of counsel.
My point was only that it would be wrong to paint with a
broad brush and assume that because our compensation was
inadequate--and I concede it was inadequate. I'm proud the
State increased it. But it would be wrong to paint with a broad
brush and say that all those criminal defense lawyers who were
doing their duty to the bar and to the court and to the
community in providing zealous representation--
Senator Leahy. General Pryor, that--
Mr. Pryor. --were ineffective.
Senator Leahy. --is not my statement. That is yours. That
is not mine. I will accept your answers as you give them, and I
won't characterize them differently than you do, and don't
mischaracterize my questions. The fact is that you--I believe
you have--you raise a real red flag when you have any State
that caps defense lawyers at that amount. And the idea that
always the bar will come through, and in another State near you
the State Supreme Court said that when they had a lawyer who
slept through much of the capital case, they said, well, the
Constitution requires you to have counsel, it doesn't say it
requires them to be awake.
I think the fact of the matter is that at the very least a
warning sign should go up. At the very least, contrary to some
of the feelings that you expressed back in 2001, at the very
least we ought to be having strongly competent counsel for the
defense, just as I feel we should have very competent
prosecutors. I was a prosecutor for 8 years. I feel very
strongly that way. I prosecuted a lot of murder cases. But I
also know what can happen if you don't have good people on both
sides.
I am looking at some of the amicus briefs. We have
discussed some of them that you have filed as an example
perhaps of your judgment. You were the only Attorney General
out of all the States to file an amicus brief opposing the
Federal Government in the case involving the Violence Against
Women Act that allowed victims of gender-motivated violent to
sue their attackers in Federal court. You have spoken many
times with pride about your involvement and your lone
opposition in this case. Incidentally, 36 other States took the
other position.
Under your leadership, Alabama was the only State to submit
an amicus brief in the case of Solid Waste Authority of
Northern Cook County v. U.S. You argued the Federal Government
did not have authority under the Constitution's Commerce Clause
to prevent destruction of waters and wetlands that serve as
critical habitat for migratory birds. I heard from a lot of
hunters in my State on that.
And while you were Attorney General, Alabama was the only
State to file an amicus brief in the famous case Bush v. Gore.
Even conservative Republican Attorneys General were not willing
to do that.
I only raise this because we expect circuit court judges to
be able to reach consensus with their colleagues as much as
possible. Obviously in these cases you were unique among your
fellow Attorneys General, and I will concede, of course, that
you represent only the State of Alabama, and you only have to
answer to the State of Alabama, not the other 49 Attorneys
General. But do you feel that you may be giving a signal that
you might not be collegial enough to be on the court?
Mr. Pryor. No, not at all, Senator. You've raised several
points. I'd like to address as many of them as I can, as I can
recall.
Senator Leahy. Sure.
Mr. Pryor. First of all, in both the Swank case, the
migratory bird rule or Clean Water Act case, and in the
Violence Against Women Act case, it's true I was the only State
Attorney General who offered that perspective, but it was the
perspective that the Supreme Court ultimately sustained.
There have been many other instances, though, where, as a
State Attorney General, I have filed amicus briefs that many
States have joined. In fact, my office has previously received
the Best Brief Award from the National Association of Attorneys
General because of our Supreme Court work, the first time that
our office has ever received that, and tomorrow we'll receive
another one of those awards for an amicus brief that we wrote.
Now, I think it's a misunderstanding, though, to say that I
was the only State Attorney General to file an amicus brief in
Bush v. Gore. There were at least a dozen Democratic Attorneys
General who filed an amicus brief in Bush I. There were three
Republican Attorneys General who filed an amicus brief in Bush
I. And I filed one separately. I filed one because Alabama had
a case that I personally handled called Roe v. Alabama that was
a part of the legal argument that was being made by the two
sides, and I wanted to offer my perspective about that case,
and that's where our argument was principally focused. It was
an equal protection and due process argument, and we offered it
again in Bush II, which had a less than 24-hour deadline for
filing an amicus brief. I don't know how many of my colleagues
tried to meet that deadline. But it is untrue that other
Attorneys General did not file amicus briefs in that case.
There were several of them who did.
Senator Leahy. Unfortunately, my time is up. I will follow
up on that particular point, as you can imagine, with follow-up
questions. I would ask you just one last question, if I might,
Mr. Chairman, and my others will be in writing.
You have been criticized because of your personal views and
your political philosophy, which are always open to question
for any one of us, except that no matter what your personal
views, no matter what your political philosophy is, you are
expected to be a fair and impartial Federal judge if you are
confirmed.
What assurances can you give us that you would be that fair
and impartial judge that people coming into your courtroom
wouldn't look at you and say, well, I am the wrong political
party or I am the wrong political philosophy so I am not going
to be treated fairly? What assurances would you give?
Mr. Pryor. I would urge them first to look at my record as
a State Attorney General. Of course, eventually I would hope
that they could look at my record as a judge and see my
decisionmaking and see my fairness and impartiality, but look
before that at my record as a State Attorney General. When you
raise issues of politics, I have prosecuted Republicans. I have
prosecuted the former director of the department--
Senator Leahy. So have I.
[Laughter.]
Senator Leahy. I have also prosecuted Democrats, I must
say.
Mr. Pryor. Me, too, and that's my responsibility as
Attorney General. I have sided with Democratic interests
several time in legislative redistricting cases because I
thought their argument was the right legal argument. I
prosecuted the former director of the State Department of
Transportation in the Governor--in the administration of the
Governor who appointed me and convicted him. I have prosecuted
Republicans for voter fraud, for trying to rig elections.
I would urge people to look at my record. My record is one
that, whatever my political philosophy might be on the one
hand, when it comes to my record as Attorney General and making
tough decisions I strive to follow the law. And I would urge
people to show otherwise. I believe that my record shows that I
strive to follow the law.
Senator Leahy. Thank you, Mr. Pryor.
Thank you, Mr. Chairman.
Chairman Hatch. Thank you, Senator Leahy.
We are just about through for this morning, now afternoon
hearing, but let me just clarify a few things, if I can, before
we finally wind up.
Isn't it true that although you are clearly pro-life--and
you have made that clear--you directed prosecutors to enforce--
Senator Leahy. Mr. Chairman, I just want to correct one
thing. I moved Paul Cassell through while I was chairman, but I
did vote against him on the floor. I had that error. I didn't
want to--I had forgotten. I knew that--I resisted the urging of
many to hold him bottled up in committee. I brought him out on
the floor so he could have a vote.
Chairman Hatch. You did, and we appreciated that.
Let me go back again to this question because I think we
need to clarify a few things before we break for lunch. It is
true that you are strongly pro-life. That is apparent. So am I.
You directed prosecutors to enforce the State partial-birth
abortion ban only to the extent permitted by the Supreme Court.
Is that right?
Mr. Pryor. That was what I strived to do.
Chairman Hatch. Even though you had people pushing you to
go farther.
Mr. Pryor. Absolutely.
Chairman Hatch. To try and expand that law beyond what the
Supreme Court had said.
Mr. Pryor. Absolutely.
Chairman Hatch. So you went along with the Supreme Court,
which is the law of the land.
Mr. Pryor. Yes.
Chairman Hatch. Even though you might have believed
otherwise.
Mr. Pryor. Absolutely.
Chairman Hatch. Even though you did believe otherwise.
Isn't it true that even though you have been critical of
Section 5 of the Voting Rights Act, you defended majority-
minority voting districts created under the Act all the way to
the Supreme Court, which sided with you? Isn't that right?
Mr. Pryor. Absolutely, Senator.
Chairman Hatch. In other words, even though you disagreed
with it, you defended them, and you defended the rulings that
you disagreed with all the way to the Supreme Court, and the
Supreme Court found you were right.
Mr. Pryor. Yes.
Chairman Hatch. Isn't it true that although you filed a
brief in Lawrence v. Texas, you relied on the language of
Justice White of the United States Supreme Court in Bowers v.
Hardwick, right?
Mr. Pryor. Absolutely.
Chairman Hatch. So you were following the law of the land.
Mr. Pryor. Absolutely.
Chairman Hatch. The law as determined by the Supreme Court
of the United States of America.
Isn't it also true that although you defended the display
of the Ten Commandments in the Alabama Supreme Court and
student-led prayer, you did so only to the extent permitted by
precedent and on much narrower grounds than that suggested by
the Governor who appointed you?
Mr. Pryor. Absolutely.
Chairman Hatch. And you were right.
Mr. Pryor. Yes.
Chairman Hatch. You were found to be correct by the courts.
Mr. Pryor. Yes.
Chairman Hatch. Well, isn't it true also that although you
filed briefs in the Garret and Kimmel cases as well as the
Morrison case, the cases involving the Americans With
Disabilities Act, et cetera, those briefs challenged only small
portions of the Americans With Disabilities Act, the ADEA, and
VAWA, or the Violence Against Women Act? You filed briefs in
those cases, but who did the Supreme Court agree with?
Mr. Pryor. They agreed with our arguments every time.
Chairman Hatch. They agreed with you. So all these
criticisms that seem to be criticisms and arguments against you
are arguments against decisions by the Supreme Court. I wonder
who is outside the mainstream. It certainly isn't you. That is
a shibboleth that is used around here far too often.
Now, let me just go a little bit further here. On the death
penalty, is it not true that you strongly support increasing
payments for appointed counsel up to $15,000 in capital cases?
Mr. Pryor. I do.
Chairman Hatch. Per case.
Mr. Pryor. In the first stage of appeals, and I've been
unsuccessful in that urging, but it is something I still urge.
Chairman Hatch. And it is something you think would be a
step in the right direction?
Mr. Pryor. Yes.
Chairman Hatch. Now, just for the record, what is your
religious affiliation?
Mr. Pryor. I'm a Roman Catholic.
Chairman Hatch. Are you active in your church?
Mr. Pryor. I am.
Chairman Hatch. You are a practicing Roman Catholic.
Mr. Pryor. I am.
Chairman Hatch. You believe in your religion.
Mr. Pryor. I do.
Chairman Hatch. I commend you for that. But I would like to
ask you just a few questions to follow up on Senator Durbin's
concerns that your strong statements about Christianity
indicate some sort of insensitivity towards religious
minorities. I would like to say something very important that
debunks that allegation. As Attorney General you have been a
tireless defender of religious liberties and freedoms for
people of all faiths, have you not?
Mr. Pryor. Yes.
Chairman Hatch. Now, as you mentioned in response to
Senator Durbin, you worked tirelessly to promote the passage of
the Alabama Religious Freedom Amendment to the Alabama
Constitution, which requires the government to show, quote, ``a
compelling interest,'' unquote, in other words, a higher
standard, before it imposes religious restrictions, and the
restriction has to be, quote, ``the least burdensome,''
unquote, possible. And that applies to people of all faiths,
does it not?
Mr. Pryor. It does, Senator.
Chairman Hatch. And you were advocating for that?
Mr. Pryor. Yes.
Chairman Hatch. As a committed Catholic.
Mr. Pryor. Yes.
Chairman Hatch. For everybody, regardless of religious
belief.
Mr. Pryor. Absolutely.
Chairman Hatch. Now, I would like to submit for the record
a letter written by an active member of the Birmingham Jewish
community, Herc Levine, who writes that Attorney General
Pryor--quote, ``That Attorney General Pryor has''--I've got the
quote right, who writes that you have his support, quote, and
here is what he says, ``and the support of many in the Alabama
Jewish community because of his personal integrity and
commitment to ensure that all of our citizens are treated
fairly and receive equal justice under the law. He has been a
true friend to the Alabama Jewish community on many important
issues,'' unquote. Are you aware of that letter?
Mr. Pryor. I am.
Chairman Hatch. I want to say something else that is
equally important. You have been honored for protecting the
religious liberties of incarcerated prisoners, have you not?
Mr. Pryor. I have.
Chairman Hatch. Many states have considered exempting
prisoners from religious freedom protection, but not you.
Mr. Pryor. No. I demanded otherwise.
Chairman Hatch. You successfully prevented the Alabama
Religious Freedom Act from including a prison exemption; is
that correct?
Mr. Pryor. Absolutely.
Chairman Hatch. You fought for that?
Mr. Pryor. I did.
Chairman Hatch. Now, in recognition of your efforts, if I
have it correctly, you were honored with the 1999 Guardian of
Religious Freedom Award by the Prison Fellowship Ministries,
the Justice Fellowship and the Neighbors Who Care, right?
Mr. Pryor. That's correct, Mr. Chairman.
Chairman Hatch. I think, you know, it is easy to take
somebody who has been in politics as long as you have, and pick
statements out of literally thousands of paragraphs and
writings and records and briefs that maybe you have not even
written, as has been indicated here, and pick out isolated
paragraphs with which you think you can disagree or you could
make a fuss over, and then try to undermine a person's
credibility. Here we have a religious person who is very up
front about his religious beliefs and his personal views, but
who in every case that I can see--and I have really gone
through this with pretty much of a fine-tooth comb--has
followed the law regardless of his personal, deeply felt,
strongly felt religious beliefs. And in virtually every case
except a few that you lost, you won. The Court sustained your
positions. And yet almost every point that has been made, or at
least attempted to be made against you here today, has been a
point made in areas where you have won, where your point of
view was agreed to. I think that is a fair statement, and I
have seen what they tried to do to you when your nomination
came up here. I am not talking about people on this Committee.
I am talking about the outside groups who do not seem to care
how outrageous their smears are. I thought Senator Kyl did a
very good job of showing how really ridiculous it gets around
here.
I think it is also ridiculous to make such a fuss against
people just because you disagree with them, and try to paint
them as outside of the mainstream of American jurisprudence,
especially somebody like you who wins all these cases, and
whose point of view has been sustained by the Supreme Court
time after time after time. We may not like that from time to
time, but who are we? It seems to me we are outside the
mainstream if we start trying to make a fuss about some of the
things that Supreme Court has done. Now, we can differ with
them just like you have. You have differed with Justice Souter
in a number of ways. That does not mean that you hate the guy
or that you do not think he has a redeeming quality or that you
do not think he should be sitting on the Supreme Court, and
maybe you have used some language that you wish in retrospect,
sitting there, you had not used. You have said that in that one
quote that it was a, quote, ``feeble attempt,'' if I recall it
correctly, to be humorous. Did the people laugh who were there?
Mr. Pryor. In that mixed audience, mostly conservative,
yes, there were a fair number of laughs.
Chairman Hatch. Well, I just would suggest from hereon in,
as we make you judge, you should probably be very careful about
criticizing Justice Souter, how is that?
[Laughter.]
Chairman Hatch. Or any other Supreme Court Justice for that
matter, although it is very legitimate for lawyers, and
especially Attorneys General, and especially lawyers on this
Committee, to find fault with Supreme Court decisions, and to
wish that they were otherwise.
Now, you have wished that Roe v. Wade were otherwise. But
you have sustained Roe v. Wade in your job as an Attorney
General which is a much more political job than being a Circuit
Court of Appeals Judge. You have done what is right, regardless
of your personal views that are deeply held. Look, I wish we
could find more people like you to be on the Federal bench. We
would be a lot better off in this country, and I have to say, I
think we are finding a lot of good people, just like you or
similar to you or similar to great Democrats and Republicans of
the past who have distinguished themselves once they became
judges. And I can name great Democrat judges and I can name
great Republican judges, and I can name lousy Democrat judges
and lousy Republican judges, who really have not distinguished
themselves.
One thing we do as lawyers, we do criticize each other, and
that is not unhealthy. That is a good thing. But I wanted to
get some of those things across, that some of the things that
some have criticized you for were the mainstream.
Senator Leahy. Mr. Chairman, before we go to the next
person, I just want to make, if I could, a couple quick points.
Senator Specter. Mr. Chairman, I would very much like to go
to the next person.
Senator Leahy. I would like, Mr. Chairman--
Chairman Hatch. I will go to the Senator.
Senator Leahy. Thank you. Mr. Chairman, I--
Senator Specter. Mr. Chairman, are we rotating here?
Chairman Hatch. Yes, but we are going to go to Senator
Leahy for whatever comment he wants to make.
Senator Leahy. Just went from a Republican to a Democrat
now you see, that is rotation.
I am not going to ask questions, but just to note two
things. One, you were asked about your religion. In 29 years in
the Senate and thousands of nominations hearing in all the
different committees I sit on, I never asked a nominee what his
or her religion was because I think that that is irrelevant to
our consideration. And I would hope, I would hope that that is
not going to become a question that nominees are going to be
asked because we should be, just so as we are supposed to be
color blind, we should be religious blind, as far as that is
somebody's personal choice, and has nothing to do with their
qualifications. And I would hope that that would not become a
question.
Also in looking over the transcripts, so there could be no
question in your mind, when I spoke about Bush v. Gore,
obviously I was speaking about the final decision, the decisive
one.
Thank you, Mr. Chairman.
Chairman Hatch. Well, let me just make it clear, I do not
usually ask that question either, but lately we have been
finding situations where some of the questions that come up
clearly go to that issue. And I just wanted to make it very
clear that he is a very strong Catholic who believes in what he
is doing, but yet has abided by the law, and that is a very
important point because some of the criticisms have been
hitting below the belt, frankly.
Senator Specter?
Senator Specter. Thank you, Mr. Chairman. I withdraw my
objection to Senator Leahy's latest intervention because I want
to associate myself with his remarks. I do not believe that
religion ought to be a question either. If you have been
attacked for being a Catholic, that is one thing. Have you been
attacked for being a Catholic?
Mr. Pryor. In my life, Senator?
Senator Specter. No, in connection with this judicial
proceeding? I would hate to go back over my life to answer that
question with my religious background.
Mr. Pryor. I wouldn't want to characterize anyone as
having--
Chairman Hatch. Well, I interpreted it that way.
Senator Specter. If I may proceed, Mr. Chairman?
Chairman Hatch. Sure.
Senator Specter. In the absence of an attack, if there is
an attack, it is a different matter. Then you have to defend
yourself and it becomes a relevant issue if it is an attack,
but I would hope that this Committee would not inquire into
anybody's religion. There are enough questions to inquire into
and enough substantive matters that that ought to be out of
bounds. So I want to associate myself with what Senator Leahy
said.
The Chairman has asked about whether you have made some
comments which you now consider intemperate, and I regret that
I could not be here earlier today, but as you know, we have
many conflicting schedules. But I note the comment you made
after Planned Parenthood v. Casey, where you were quoted as
saying--first I would ask you if this quote is accurate. I have
seen a quote or two not accurate. ``In the 1992 case of Planned
Parenthood v. Casey the Court preserved the worst abomination
of constitutional law in our history,'' close quote. Is that an
accurate quotation of yours?
Mr. Pryor. Yes.
Senator Specter. Is that one which would fall into the
category that Senator Hatch has commented on, you wish you had
not made?
Mr. Pryor. No, I stand by that comment.
Senator Specter. Why do you consider it an abomination,
Attorney General Pryor?
Mr. Pryor. Well, I believe that not only is the case
unsupported by the text and structure of the Constitution, but
it had led to a morally wrong result. It has led to the
slaughter of millions of innocent unborn children. That's my
personal belief.
Senator Specter. With that personal belief, Attorney
General Pryor, what assurances can you give to the many who are
raising a question as to whether when you characterized it an
abomination and slaughter, that you can follow a decision of
the United States Supreme Court, which you consider an
abomination and having led to slaughter?
Mr. Pryor. I would invite anyone to look at my record as
Attorney General, where I've done just that. We had a partial
birth abortion law in our State that was challenged by abortion
clinics in Alabama in 1997. It could have been interpreted
broadly or it could have been interpreted narrowly. I ordered
the district attorneys of Alabama to give it its narrowest
construction because that was based on my reading of Roe and
Casey. I ordered the district attorneys to apply that law only
to post-viable fetuses. I could have read it easily more
broadly. The Governor who appointed me was Governor at the time
and a party to the lawsuit, disagreed with me and openly
criticized me. A pro-life activist in Alabama criticized me.
But I did it because I thought that was the right legal
decision. I still had an obligation to defend Alabama law. This
was a recently-passed Alabama law. When the Supreme Court of
the United States later of course struck down this kind of
partial birth abortion law, we conceded immediately in district
court that the decision was binding, but until then I was
making the narrowest argument I could make, trying to be
faithful to the Supreme Court's precedent, while also being
faithful to my role as Attorney General and my oath of office
to defend a law recently passed by the legislature.
Senator Specter. When you talk about post-viability and you
have the categorization of partial birth or late-term abortion,
is not that statute necessarily directed toward post-viability?
Mr. Pryor. That was one of the main arguments I made in
construing it, but if you look at the actual language--
Senator Specter. Well, I asked you that question as to
whether there was a basis for construing it to the contrary.
When you talk about partial birth abortion, we are talking
about an event in the birth canal which is definitely post-
viability. When you talk about late-term abortion, we are also
talking about post-viability. So aside from having some people
who will raise a question about anything, whether there is a
question to be raised or not, was it not reasonably plain on
the face of the statute that they were talking about post-
viability?
Mr. Pryor. No, I don't think anyone would contend that. In
fact, the abortion clinics argued that that was not how you
could interpret the law, and that my instructions to the
district attorneys, while helpful in narrowing the construction
of the law, gave them no real benefit because I could withdraw
it at any time. That was the argument they made. They made the
argument that you could easily broadly construe the law to
apply pre-viability, so, no. There was a legitimate issue
there.
There was also a law passed by the legislature in the same
session that was a post-viability law itself. So you had a
partial birth law and a post-viability law, and when you read
the text of the partial birth law, that was not so clear,
Senator.
Senator Specter. In Casey v. Planned Parenthood that was an
opinion, plurality, written by Justice O'Connor, a strong pro-
life Justice, Justice Anthony Kennedy, a strong pro-life
Justice, and also Justice Souter. Now, some might raise a
question as to Justice O'Connor's instincts being a little more
concerned with the woman's point of view, but in Justice
Anthony Kennedy, you have a Justice of impeccable pro-life
credentials, a man whom I voted to confirm, as I did Justice
O'Connor, and Justice Souter, and for that matter, Justice
Rehnquist, and Scalia, and Justice Clarence Thomas.
What do you find in the writings of that plurality opinion,
noting the presence of Justice O'Connor and especially the
presence of Justice Anthony Kennedy, to be an abomination?
Mr. Pryor. Well, they preserved Roe and they were following
Roe and I considered Roe to be the abomination because it
involves abortion, involves, from my perspective, the killing
of innocent, unborn children.
Senator Specter. Well, let's move on then. On the Civil
Rights Act, you have objected to Section 5 of the Act and have
urged its repeal. Why have you taken that position, Attorney
General Pryor?
Mr. Pryor. I believe the Voting Rights Act is an important
and necessary law in American history, and Section 5 was
vitally needed in 1965 and for many years thereafter. It has
now been almost 40 years afterwards. And what we routinely see
in Alabama and in other states, is that when we want to change
a polling place from say a firehouse on one side of the street
to a schoolhouse on the other side of the street, we have to
submit that to either the Department of Justice or Federal
District Court in D.C. to obtain permission. They are routinely
now granted, but if we miss any identification of what change
in law was precisely made in the preclearance process, there's
a ``gotcha'' game that is played by lawyers representing white
voters, Republican voters, and others for their own political
opportunity that has nothing to do with protecting the voting
rights of minorities. That's what I've seen in my own capacity
as Attorney General.
Senator Specter. Are there any other provisions of the
Voting Rights Act which you would like to see repealed?
Mr. Pryor. No. I think that Congress--
Senator Specter. The rest of it has been in existence for
40 years too. Is any of it outmoded beyond Section 5 which you
have already testified about?
Mr. Pryor. No. In fact, Section 2, the core provision,
which applies to every jurisdiction in the United States, and
prohibits dilution of minority voting strength, I have actively
enforced, as I have Section 5. As Attorney General my record
has been one of enforcing the Voting Rights Act, and I very
sincerely believe in those protections and the importance of
the Act, including the importance of Section 5 of the Act for
the time of its enactment and for many years afterwards. And
there may be, if Congress reviews it very carefully, even
consistent with my perspective, a need for continued vitality
of aspects of Section 5.
Senator Specter. I see I have 12 seconds left on the clock,
so I will start another line here if I may. That relates to the
decision on the Age Discrimination Act and the move by the
United States Supreme Court on States' rights, overruling the
Lopez case, which stood for 60 years under the commerce clause,
and now an interpretation of the 14th Amendment and legislation
under Article 5 of the 14th Amendment, very difficult to find a
line of discernment.
In the most recent case there was a shift in position with
Chief Justice Rehnquist voting to uphold the Family Leave Act.
Do you agree with that most recent Supreme Court decision?
Mr. Pryor. I filed an amicus brief on the other side, on
the side that was the losing side in that case, Senator. It was
obviously a very close case, and if you look at whether the Act
was designed to prohibit gender discrimination, as the Court
found, then Congress's authority was much more likely to be
sustained. If on the other hand you argued, as I and several
State Attorneys General did, that it was more of an employee
benefit offered to all without regard to gender discrimination,
then it was much less likely to prevail. Our argument did not
prevail, and I respect the decision of the Supreme Court.
Senator Specter. Do you agree with it?
Mr. Pryor. We made the argument on the opposite side. I did
not have the opportunity to go through what the Supreme Court
Justices did and read everything in the record and all the
briefs. I think it was a very--that was a very close case.
Senator Specter. Do you agree with it?
Mr. Pryor. I don't know whether I do or not without going
through that process, Senator.
Senator Specter. ``I don't know'' is an answer.
Mr. Pryor. Okay. I'm sorry.
Senator Specter. In looking at your involvement with the
Age Discrimination in Employment Act matter and the Americans
With Disabilities where you were very active on both those
cases, and you now have the family leave case, and if you try
to discern a rational line on what the Supreme Court is going
to do, I think it is virtually incomprehensible, I think it is
incomprehensible as to whether there is a sufficient record by
the Supreme Court to satisfy the Supreme Court. The Court has
come to the position on so many Congressional enactments that
they haven't been thought through. And it is a matter of grave
concern to me, and you talk about judicial activism, which we
frequently do, as to the lack of deference that the Supreme
Court gives to Congress.
The whole point is that we are supposed to make the laws,
and they are supposed to interpret them. But they have some
line of delineation as to whether there is a sufficient record,
and really it boils down to whether it has been thought through
by the Congress.
And then I always raise the question as to whether it has
been thought through by the Court. These decisions are five-to-
four; the most recent one was six-to-three. Could you
articulate a standard for trying to decide this complex area?
And I ask you that because so many people are concerned about--
Attorney General Pryor, you are obviously a man with a very
distinguished record, magna cum laude undergrad and magna cum
laude in law school, and you are a very articulate witness. You
have had a very distinguished career, and what arises as a
point of concern is that when these questions come up and they
are so very, very close, whether your own philosophical
orientation will steer you one way as opposed to another.
So could you give us a statement as to the prevailing
principles on these decisions which go both ways and have a
very hard time to see if somebody could find a clear path as to
what the standard is?
Mr. Pryor. I will do my best, Senator. I will do so noting
that in some of the cases I have made the arguments that were
prevailing arguments, but in some, like Hibbs, the Family
Medical Leave Act case, I was on the losing side. So I may not
be the best--
Senator Specter. Well, you might be wrong. You haven't told
us if you disagree with the Court yet.
Mr. Pryor. Well, it may be that I might not be the best
judge of how do you delineate it. It was our prediction--
Senator Specter. You are the only one we have--
Mr. Pryor. Fair enough. From my understanding, though, of
the case law, when the Supreme Court looks at the Congressional
exercise of its power under Section 5, its remedial power, its
power to enforce the guarantees of the 14th Amendment and
ensure that when violated, that those violations are corrected,
that when they look at the pattern of State conduct, they want
to see whether Congress has compiled a record of
unconstitutional activity by the States. Congress is owed more
deference when the form of discrimination involved is, for
example, racial discrimination, which is subject to the highest
level of scrutiny, strict scrutiny, and Congress is given less
deference in an area that is subject to rational basis
scrutiny, as in the case of age discrimination or disability
discrimination.
Senator Specter. Where is Congress given no deference?
Mr. Pryor. Pardon me?
Senator Specter. And where is Congress given no deference?
Mr. Pryor. I don't know that it's ever anywhere given no
deference.
Senator Specter. I read a great many of the decisions that
way.
Mr. Pryor. Well, that's my best perspective of where the
Court is coming from, Senator.
Senator Specter. Okay. Thank you very much, Attorney
General Pryor.
Thank you, Mr. Chairman.
Chairman Hatch. Thank you, Senator Specter.
Here is what we are going to do. We are going to recess
until 3 o'clock. The reason is some of the Senators have some
additional questions of you. And at 3 o'clock we are going to--
let me just see here.
At 3 o'clock we are going to give you a little extra time
here. We are going to proceed with Diane Stuart, which
shouldn't take a long time. Diane has sat here all day, and she
is, of course, to be the Director of the Violence Against Women
Office, and that is at the Department of Justice. So what we
will do is we will proceed with her, and I think you should be
back here somewhere shortly after 3 o'clock. And then we will
resume with you, hopefully for not too long a time after that,
and go through these questions.
Now, I want to make this clear because I am really upset
with some of the things that have gone on in this Committee
over the ensuing months. It is not the Committee's usual
proceeding to ask a nominee about his or her religious beliefs.
And I agree with that position and with both Senator Leahy and
Senator Specter. But perhaps Senators Leahy and Specter were
not here when you were asked whether, in light of your
statements about Christianity, you could be fair to religious
minorities. You have also been asked extensively about your
personal beliefs with regard to Roe v. Wade, which almost
everybody for a circuit court judgeship is asked--in fact,
everybody is because that seems to be the be-all, end-all issue
to some people in this Committee.
But, of course, being asked those questions, as I
understand it, that stems from your pro-life beliefs, which in
turn are rooted in your religious beliefs.
Senator Leahy. Well, Mr. Chairman, one more time--
Chairman Hatch. Let me just--
Senator Leahy. --I must object if we are going to go into
people's religious beliefs.
Chairman Hatch. Let me just finish with my remarks and you
can say whatever you want to. So though it is unusual to ask
about a nominee's religion, I think it is in this case
because--it perhaps should have been raised in some prior cases
as well with what has gone on in this Committee.
In this case, General Pryor's religious beliefs have been
put squarely at issue, and if not directly, indirectly. But I
think directly. So that is the reason why I raise it. I don't
intend to raise it again, but the fact of the matter is that I
just wanted to make sure that that is clear why I did that. And
I don't intend to do it in the future, but I sure hope we can
get off some of the approaches that the outside groups are
encouraging us to do up here. And we can be more fair to people
who do have deeply held religious beliefs regardless of
religion.
And the point I am making with you is that your whole
career has been spent making sure that there is religious
freedom and respect for religious beliefs throughout your
career, and I just wanted to make that point. Would you
disagree with that?
Mr. Pryor. I appreciate the Senator's perspective very
much.
Chairman Hatch. Thank you.
With that, we will recess--
Senator Leahy. Mr. Chairman, you said I could respond.
Chairman Hatch. Sure, go ahead.
Senator Leahy. Mr. Chairman, I have to disagree with you,
and you are my friend. I think it is inappropriate if we start
raising what a candidate's religion is. Going into their
philosophy beliefs, that is fine. But to somehow jump from
there to what their religion is and, thus, what their
philosophy is I think is very, very dangerous.
Chairman Hatch. I agree.
Senator Leahy. I think if we start down that track, we are
going to all regret it.
Now, sometimes in the political arena a person's religion
has been attacked in an elective office. I know when the
Chairman, my good friend's religion was attacked, I took to the
Senate floor to defend him. In the political context I have had
my religion attacked by some members on the other side of the
aisle, and I assume someday one of them will defend me. But I
do not think it is an appropriate question to ask a nominee.
I admire people who hold deeply religious views, whatever
they might be, but I really strongly believe in the First
Amendment and feel that that should be their belief or their
family's belief. I admire them for it, but I don't think it
should be part of the questions that we ask. I really don't. I
think that we could run into a very difficult thing if we
started doing that. I think it would be a terrible, terrible
precedent to start.
Chairman Hatch. Then let's get the outside groups to stop
doing that.
We will recess until 3 o'clock.
[Whereupon, at 1:32 p.m., the Committee was adjourned, to
reconvene at 3:00 p.m., this same day.]
AFTERNOON SESSION [3:03 p.m.]
Chairman Hatch. Let me call the Committee to order, and I
would like to start by welcoming Ms. Stuart before the
Committee. Diane is an old friend of mine, and I want to
congratulate her for being nominated by President Bush.
It is a true pleasure to have Ms. Stuart before the
Committee. Her impressive background, dedication to the issue
of domestic violence and violence against women as well as her
past Government service make me very confident that she will be
a great asset to the Department of Justice, to this Committee,
and to the American people, above all to women.
On a personal note, I want to express on behalf of myself
and the Committee my sympathy to you, Diane, for the tragic
loss of your grandson. I want you to know that my thoughts and
prayers are with you and have been with you and your family as
you cope with this terrible loss.
Let me turn to your nomination. Since it was created in
1994, the Office on Violence Against Women has played a vital
role in protecting our children and women from the tragedy of
violence and abuse. I have been and will continue to be a
strong supporter of the office, along with my colleagues
Senator Biden, Senator Leahy, Senator Specter, Senator Schumer,
and others on this Committee.
Since 2001, Diane Stuart has demonstrated her ability to
lead this important office to bring new energy and focus to its
many missions and to continue to help our Nation's women and
children who fall victim to abuse and violence.
Ms. Stuart is a dedicated public servant who has a
longstanding record of accomplishment in promoting programs and
policies to protect women from violence. Anyone who knows Diane
Stuart also knows that her public service and commitment to
this area began long before 2001, when she assumed the position
of Director of the Violence Against Women Act Office.
From 1989 to 1994, Ms. Stuart served as the executive
director of the Citizens Against Physical and Sexual Abuse from
Logan, Utah, where she was responsible for a 20-bed shelter for
victims of domestic violence and in addition was responsible
for a rape crisis center.
From 1994 to 1996, Ms. Stuart was a victim advocate
specialist for the State of Utah in Salt Lake City. From 1996
to 2001, she served as the State of Utah's coordinator for the
Governor's Cabinet Council on Domestic Violence.
Finally, from 1995 to 2001, she served as a member and
later became spokesperson for the National Advisory Council on
Violence Against Women.
That was such an impressive background at both the State
and Federal level, I am confident that Diane Stuart is the
right person for this critical post at the Justice Department,
and I am really hopeful that the Committee and the Senate as a
whole will move quickly to confirm her, and I expect them to do
so.
So, Diane, maybe you can stand and we will swear you in.
Would you raise your right hand? Do you affirm that the
testimony you are about to give before the Committee is the
truth, the whole truth, and nothing but the truth, so help you
God?
Ms. Stuart. Yes.
Chairman Hatch. Thank you. Now, if you have a statement you
would care to make, we will be glad to take it at this time.
STATEMENT OF DIANE M. STUART, NOMINEE TO BE DIRECTOR, VIOLENCE
AGAINST WOMEN OFFICE, U.S. DEPARTMENT OF JUSTICE
Ms. Stuart. Thank you, Senator. I do.
First, Chairman Hatch, I would like to thank you for
holding this hearing today and for your sensitivity in the
death of our grandson and the postponement and rescheduling of
this hearing. I am honored to be here, and I am very thankful
to the President of the United States for the honor of
nominating me to the Office of Director on the Office on
Violence Against Women.
I am also extremely grateful to the President and the
Attorney General for their unwavering support and leadership in
our National efforts to end violence against women, from the
President's Domestic Violence Month proclamation to the White
House Roundtable on Violence Against Women, from the Attorney
General's Symposium on Domestic Violence to the President's DNA
Initiative. This administration's commitment to this issue has
been and continues to be extremely strong.
As the former director of the domestic violence shelter
that you mentioned and rape crisis center, I know very deeply
of the importance of Federal leadership on these issues, and,
of course, Congress recognized that when they passed the
Violence Against Women Act in 1994 and when the office was
created in 1995. At its very core, the Violence Against Women
Act is about coordinated community response to these crimes. We
have learned over and over again that collaboration among law
enforcement, prosecutors, judges, advocates, health care
workers, businesses, the faith community, and many others in
the community that this is the key to ending violence against
women. It's this coordinating and working together effort. And
through the grants that the Office of Violence Against Women
administers, we know that it works. Policies and procedures are
being impacted by this coordinated community response.
But, Senator, when the Justice Department statistics reveal
that in a single year there are almost 700,000 incidents of
domestic violence, 248,000 rapes and sexual assaults, and over
1 million incidents of stalking, there is, as we all recognize,
still much to do.
Should I have the honor of being confirmed as the Director
of the Office on Violence Against Women, I want to commit to
you now to serve with integrity, compassion, and dedication.
And then I welcome any questions.
Chairman Hatch. Well, thank you so much. I have no doubt
that you will do exactly that, knowing you as well as I do. And
I am very proud to see you in this position and, of course, I
am proud of your willingness to come here to Washington and
serve here, giving up staying in the beautiful State of Utah,
our home State. That is a big sacrifice in my book, and I
understand it myself.
But since 2001, you have done, in my opinion, a remarkable
job as the Director of the VAWA office. Could you take a few
moments and, in addition to your opening statement, give us
some of what you consider to be the most significant
accomplishments since you assumed the position of Director?
Ms. Stuart. Mr. Chairman, when I came to the office, the
first thing that I recognized after interviewing with each one
of the staff was that the office needed to be reorganized, if
you will, to better meet the needs of staff and, more
importantly, better meet the needs of the individual grantees.
And so that was one of the first things that we did, was to
organize the office in such a way so it would be more
responsive to grantees, and ultimately more responsive to
victims.
At the same time, we started working on the application
process for grants, mostly for discretionary grants. There are
11 grant programs and 9 discretionary grant programs. And we
began working with that process of what was needed from the
discretionary grant programs, what applicants needed to know in
order to successfully gain an award from that very, very highly
competitive process that we had.
And so we rewrote the solicitation so that it would be very
easy for an applicant to look at it and see clearly what we are
looking for, the kind of elements. We put it on a scoring form,
which elements would be important. So refining the grant
application process we think is an accomplishment.
Also, refining and improving our technical assistance
program. I believe that technical assistance is a key to
communities, to States implementing what is intended with the
Violence Against Women Act in a way that really works. Congress
asked grantees to measure their effectiveness, and that's
another accomplishment. We've moved very, very far down the
road in a very complicated process in order to help grantees
with the tools that they need in order to measure how effective
they are and where they need to go in the future. So combining
the technical assistance program that we have, that initiative
that we have, and making it better than it was with their
effectiveness project is certainly an accomplishment.
I think we've accomplished a better communications with the
State administrators, with national organizations, with
individual grantees even, a lot through the technical
assistance projects but just on the day-to-day communications
with grantees in our office.
I think that a lot of policy is being directed through many
of the initiatives that are coming out through our office. For
instance, we have had a--we have begun with a focus group on
specific elements that are in the African-American community.
What is the same? What is different? And how can we be more
responsive to that particular community?
Re-entry, the same thing. Very often members that are--
individuals that have been in jail go back into the homes that
they were abusing. And so working on that initiative and
helping States and communities learn more about how to deal
with those that are re-entering their community and keeping
victims safe as they do so.
We have organized a Federal coordinating board which--I
discovered that local communities were organized. They had
understood the Violence Against Women Act and the coordinated
community response. States were coordinated. But we in the
Federal Government weren't very coordinated. What was happening
at Labor was not available to the Department of Justice, not
available to the Department of Human Services. And so bringing
key people from those Federal agencies together and talk about
what they are doing and what needs to be done in a coordinated
fashion I think is as major accomplishment.
And, finally, you are aware that the National Advisory
Council has been reorganized. It is very, very effective. It is
very--what a marvelous group of people, and many of the
Senators on this Committee suggested people for that National
Advisory Council on Violence Against Women. Energetic group.
They're going to accomplish quite a bit in the future, and
we're looking forward to their accomplishments.
Chairman Hatch. Thanks so much. That is very helpful.
Now, looking forward and hopefully after a quick
confirmation of your nomination here in the Senate, can you
outline--I think you have pretty well outlined the issues that
you have been concerned with up to now. Can you outline any
significant issues and challenges you think you are going to
face as Director of the Violence Against Women Office?
Ms. Stuart. Excellent question, Senator. Always looking to
improve what is happening is a challenge. But most
specifically, as I said, the grant--discretionary grant
programs are highly competitive. I think one of our largest
challenges is how to figure out how individual communities,
individual States can sustain the programs that they initiate
and how to keep that going far beyond Federal funding. There's
no guarantee that they will be a continued recipient of any
grant funds, so how do we help them be effective in what
they're doing and really change the way they do business in
that community, even change the fabric of that society so that
they can continue what they've started with Federal funding, if
it's 2, 3, 4 years, or maybe an organization or a State that
doesn't get a particular--an arrest grant or a rural grant.
There are many rural areas in our State that are seeking out
how do we do this. How are we effective? How do we reduce
violence against women? How do we keep victims safe?
So our challenge is how to get information and resources to
those areas that are not receiving them now, and those areas
that are receiving them, how they can continue it on in the
future.
Chairman Hatch. Thank you.
I think what we are going to do, we have one questioner who
would like to question you, and that is Senator Biden. We are
supposed to have a vote that is supposed to start right now,
but the Senate is not the most efficient organization in the
world, as you know. I think what I am going to do is recess
until Senator Biden gets here, because those are the questions
I had, and I knew you would answer them pretty much like you
did.
But let me put into the record several significant letters
that the Committee has received, letters of support for your
nomination. Specifically, we have received letters from the
National District Attorneys Association, the Utah Domestic
Violence Advisory Council, the National Council of Juvenile and
Family Court Judges, and the Minnesota Program Development, and
we will put those in the record without objection.
I think that I will head over to the floor. We will recess
until Senator Biden gets here. Is Senator Biden's staff here?
Just have him begin his questions if he gets here before I do.
And our staff, you make sure that happens. Okay? And then I
will get back as soon as I can, and hopefully after 10 minutes
or so we can move on to our judgeship.
Well, thank you, and Senator Biden is the prime author of
the Violence Against Women Act. It was the Biden-Hatch bill,
and I remember when we decided to do this together. We hadn't
been too successful up until then, but we were able to get it
through. And we both take a tremendous interest in it, and
Senator Biden in particular deserves a great deal of credit for
the Violence Against Women Act. So we are showing this complete
deference because of his efforts in this area. And I would do
it, anyway, but I would certainly do it because of his efforts.
So, with that, hopefully we will get this vote over and
Senator Biden could get here and ask you whatever questions he
wants, and then we are going to go back to our judgeship
nominee, General Pryor, and hopefully finish that up within a
short period of time.
So, with that, we will recess until after we get back from
the vote.
Ms. Stuart. Thank you, Senator.
[Recess 3:17 p.m. to 3:30 p.m.]
Chairman Hatch. We will call the Committee back to order.
Diane, Senator Biden isn't here. I hate to have to ask you
to wait. I know it has been inconvenient all day, and we could
have gotten this done. But I think what we will do is just
start with the other hearing again and call you back as soon as
I can.
Chairman Hatch. General, you will have to understand why I
might have to interrupt you again, if it is all right with you.
But I just don't see wasting this time. So if you will be kind
enough and forgive me for this, we will go ahead and do that.
General, if you will take the seat again.
While we are waiting, I might as well ask some questions
myself. General Pryor, you have been criticized for a number of
positions you have taken in your role as Attorney General of
Alabama, I think very unjustly criticized. I think that my good
friend Senator Biden said it best during the confirmation of
Justice Souter, about whom we have heard a good deal today.
Senator Biden said, ``I am mindful, of course, that a State
Attorney General has an obligation to defend the actions and
politics of the State even when his own views are at variance
with them and even when he would not, if he were a judge, adopt
the arguments he is making as an advocate.'' And that is what
you have demonstrated here today, and you agree with that.
Mr. Pryor. I do.
Chairman Hatch. You agree with Senator Biden.
Mr. Pryor. I do.
Chairman Hatch. What strikes me as ironic is that you are
being criticized for your position in a number of cases that
you won before the United States Supreme Court. Sure, you lost
some, too, but every good lawyer does. Nobody wins them all if
you have had any kind of a practice. But I think that the fact
that the Supreme Court agreed with you in a number of these
cases indicates that your arguments were hardly out of the
mainstream, you know, as some would try and indicate or as some
would believe.
For example, you have been criticized for your comments
relating to Section 5 of the Voting Rights Act, but in
Sinkfield v. Kelly, you defended several majority-minority
voting districts approved under Section 5 from a challenge by a
group of white Alabama voters. And the Supreme Court agreed
with you, didn't it?
Mr. Pryor. Unanimously.
Chairman Hatch. In other words, you didn't agree with the
present-day application of Section 5 because you think it needs
to be changed. But you did uphold that, and the Supreme Court
agreed with you.
Mr. Pryor. I did uphold--
Chairman Hatch. So here they are criticizing you for your
honesty in saying that Section 5 needs to be changed because it
is no longer applicable in a more modern time, 40 years later,
as it was in the past and it needs to be modified. I think most
Attorneys General in the South would certainly agree with you.
And yet when push came to shove and you had to defend the
statute itself, you did so, even though you disagreed with it.
I mean, I don't see how you get criticized for that, but we
do everything wrong here on the Judiciary Committee from time
to time.
In the Garret case, you argued that the Americans With
Disabilities Act could not constitutionally authorize money for
damage suits against States in Federal court. Isn't that right?
Mr. Pryor. That's correct.
Chairman Hatch. And the Supreme Court agreed with you,
didn't it?
Mr. Pryor. They did.
Chairman Hatch. So now it is kind of ironic for you to be
criticized here before this august body for having won a case
sustaining the Americans With Disabilities Act, an Act that I
had a major role in, even though you--you know, well, let me
just leave it at that. It seems just ironic that they would
criticize you for that.
Now, in the Kimmel case, you and a bipartisan group of 23
other State Attorneys General argued that the Age
Discrimination in Employment Act could not constitutionally
authorize money damage suits against States in Federal court.
You were making a federalism argument. Is that right?
Mr. Pryor. That's correct. General Butterworth from Florida
and I presented that argument together.
Chairman Hatch. That is right. And what did the Supreme
Court do?
Mr. Pryor. And the Supreme Court ruled in our favor.
Chairman Hatch. It agreed with you.
Mr. Pryor. Right.
Chairman Hatch. Now, it is interesting to me how some might
try to say, as they did against Jeffrey Sutton, that you must
be against the Americans With Disabilities Act, and yet you
took a case up and sustained that Act.
Mr. Pryor. That's right, Senator.
Chairman Hatch. At least you took a case up where you won
on that issue.
Mr. Pryor. That's right.
Chairman Hatch. In U.S. v. Morrison, where you, I guess,
criticized Justice Souter for his dissent in that case, you
argued that the civil remedies provision of the Violence
Against Women Act could not withstand constitutional scrutiny.
And, again, the Supreme Court agreed with you, didn't it?
Mr. Pryor. They did.
Chairman Hatch. Sure did. Well, now, Senator Biden and I
might not like that decision, but they agreed with you.
Mr. Pryor. They did.
Chairman Hatch. Now, that doesn't mean you are against the
Violence Against Women Act, does it?
Mr. Pryor. Oh, absolutely not. I support the Violence
Against Women Act, and as a State Attorney General and as a
member of the National Association of Attorneys General, I have
joined resolutions of our organization urging Congress to
reauthorize that law.
Chairman Hatch. Okay, but some of the criticisms from these
outside groups have been in all of these cases, haven't they?
Mr. Pryor. They have. I abhor domestic violence. I abhor
rape and sexual assault of women. I've dedicated a large part
of my administration to fighting that criminal activity in the
State of Alabama. I think we've been very successful with our
efforts. We've promoted the work of shelters for battered women
and children. We've strengthened our laws dealing with the
possession of dangerous substances like GHB, which is a
dangerous date rape drug. We've passed important laws, like the
domestic violence law, in a bipartisan package with my former
Governor.
That's the core of who I am, but when it came time to
uphold the Constitution and to present the argument that I did,
I felt that it was important that the Court consider that
argument and was pleased the Court agreed with it.
Chairman Hatch. And in many cases, you set aside your own
personal beliefs in order to do your job and duty to sustain
the statutory language.
Mr. Pryor. I would like nothing more than to have more
remedies to go against those who would perpetrate violence
against women, but it has to be done consistent with the
Constitution.
Chairman Hatch. Now, in Solid Waste Agency of Northern Cook
County, you argued that the Army Corps of Engineers did not
have the authority under the Federal Clean Water Act to
exercise Federal jurisdiction over entirely intrastate bodies
of water--in this case, an abandoned gravel pit, if I recall it
correctly.
Mr. Pryor. That's correct.
Chairman Hatch. And the Supreme Court again agreed with
you, right?
Mr. Pryor. They did.
Chairman Hatch. So you are being criticized as being anti-
environment because of the case that you won in the Supreme
Court.
Mr. Pryor. Well, I don't perceive it as--
Chairman Hatch. By some of these outside groups, that is.
Mr. Pryor. And I don't perceive it as anti-environment at
all. Making sure that there's the proper balance of Federal and
State power allows State authorities and Federal authorities to
know where the lines are so that State environmental protectors
can do their jobs as well.
Chairman Hatch. But, again, there are some of these inside-
the-Beltway groups that have criticized you even though you won
the case in front of the Supreme Court.
Mr. Pryor. Well, I was pleased that they ruled in our
favor. I thought it was the correct decision. I thought, again,
that as a State Attorney General I had a perspective that would
be helpful for the Court in resolving a very difficult
controversy.
Chairman Hatch. You can see why I am upset and why I am not
going to sit here and allow a well-qualified, fair-minded
nominee like yourself to be categorized as ``an extremist,''
which some of these outside groups that have tried to make you
out to be. You know, you won these cases. These are cases--this
is the law of the land.
Mr. Pryor. It is.
Chairman Hatch. The ones who are outside the mainstream are
these people who are the critics, especially when the positions
you have taken have been consistently supported by the Supreme
Court majorities.
Now, these are some of the things that have bothered me a
great deal about some of the unjustified criticisms that you
have received, and that is one reason why I have taken the time
to go through these.
Senator Sessions, I think you had a couple things you would
like to say.
Senator Sessions. I do. Thank you, Mr. Chairman. Thank you
for your leadership. And it amazes me how you are able to
master all the details of so many of these cases in so many of
these hearings that we go through. And I know you are involved
in a lot of other issues at this time, such as an asbestos bill
and also the prescription drug legislation that is moving
forward today. And I thank you for your leadership.
Chairman Hatch. Well, thank you, Senator. And so everybody
understands, I am going to have to leave in a little while
because of some of the other duties I have, and I am going to
ask Senator Sessions to continue to chair this hearing until we
finish it.
Senator Sessions. Attorney General Pryor, I think the thing
to me that is distressing is that the groups that are making
the complaints about you and some of our Members of the Senate
don't understand the reality of life in Alabama today. They
have a rather unfair 1960's image of the state. But we have a
vigorous two-party system. We have a substantial number of very
able and outspoken African-American leaders in the State. We
talked earlier about the very strong support you have gotten
from Dr. Joe Reed, who is a State representative and Chairman
of the Alabama Democratic Conference for probably 30 years, the
most powerful African-American political force in the State,
also a member of the Democratic National Committee. I have
talked with him over the years, and I know he knows about
Federal courts and has always taken that as a real interest.
So we have some people from outside the State that might
complain, but the people who really have been carrying the
water for civil rights in Alabama are supporting you. Alvin
Holmes is one of the most outspoken members of the legislature.
I have gotten to know and admire him and watched him over the
years. He would be here today were not the State legislature in
session. His letter on your behalf says, ``From 1998 to 2000,
Bill Pryor sided with the NAACP against a white Republican
lawsuit that challenged the districts of the legislature. Pryor
fought the case all the way to the United States Supreme Court
and won a unanimous ruling in Sinkfield v. Kelly in 2000.''
The lawsuit was filed by Attorney Mark Montiel, who both
you and I know, and a three-judge federal court ruled in favor
of Judge Montiel. But despite that, you carried it forward.
Why were you willing to take the political heat, oppose a
position of your friends, and take the position that Mr. Alvin
Holmes did? What motivated you to do that?
Mr. Pryor. I took an oath of office when I became Attorney
General. I swore to uphold the Constitution and laws of not
only the United States but the State of Alabama, and I firmly
believed in that lawsuit that the laws required the dismissal
of the case, that Mr. Montiel's--Judge Montiel's, as you
referred to him--his clients lacked standing to sue and to
complain about those districts when they did not even reside in
those districts. I thought the precedents of the Supreme Court
were clear, and we took the case up on that basis, and that's
how the Court ruled on that basis and agreed with our argument
unanimously.
Senator Sessions. Now, there is a good government group in
Alabama, and they concluded that one of the legal problems with
reform in education was that teachers or junior college
administrators were able to serve in the legislature. A large
number of them in fact had key positions in the legislature,
and there was a dispute about whether this was legal or not.
And you were the Attorney General for the State of Alabama, and
the group wanted you to join in that lawsuit, which had wide
support within the State.
How did you analyze that tough call? And what decision did
you make?
Mr. Pryor. I looked at the complaint that they filed in the
circuit court and concluded that, in fact, the complaint was
contrary to the law, that the teachers and junior college
employees had a right to serve in the Alabama Legislature. And
I took that position. I did my duty as Attorney General and
defended the case and defended the practice that was complained
about. And the Supreme Court of Alabama agreed with our
argument.
Chairman Hatch. Senator Sessions, could I interrupt you?
Senator Sessions. Please.
Chairman Hatch. Diane, we are going to let you go because
Senator Biden is unable to come, and he has agreed to end the
hearing at this point for you. And what we are going to do is
keep the record open for questions by close of business next
Tuesday, so you will need to get your questions back because we
will put you on, not tomorrow's markup but we will put you on
next Thursday's markup. And I don't want you put over for a
week at that time, and hopefully we can report you out next
Thursday--not tomorrow but next Thursday.
So, with that, we will let you go, and your family, and we
appreciate having you here and we are proud of you.
Now, General Pryor, I have been informed that there are no
further requests for time for questions. I think that is
probably because you have handled yourself very well. I am
hopeful that that is so because I believe you have. I believe
you not only answered every question in a fresh, honest,
straightforward way, but you have done it in a very intelligent
way in each situation. And I am hopeful that some of the
threats that have been issued in the past, without having met
you on the part of some of our Senators, will dissipate because
they should. You have clearly been a very intelligent, very
gifted witness here today. You are clearly a person of great
conscience and clearly a person of great ability. You clearly
have our support. And, frankly, I am hopeful that we will be
able to get you through within a relatively short period of
time so that you can go on the Eleventh Circuit Court of
Appeals and do what you have been doing as an Attorney General
in the sense that you are following the law. And you are
intelligent enough to know how to decide cases where there is
no law, which is all we can ask of judges, and to decently and
honestly do so.
We have to set our personal preferences aside and do what
is best for the law. And I have no doubt that you are going to
do exactly that. And I believe with that, Senator, if you have
no objection, I think we will formally close the hearing and
wish you well. We are going to keep the record open for you to
answer questions until--any member of this Committee can submit
questions as of the close of business at 5 o'clock on next
Tuesday. So that gives staff and members of the Committee until
next Tuesday to submit written questions. We would suggest that
you get your answers back immediately, as soon as you can, so
that we can move your nomination.
We will put you on the next Thursday--not tomorrow but the
next Thursday markup, like Diane as well. And under our
Committee rules you may very well put over for another week. I
hope not but you may be. That has kind of become the rule
lately, and I would like to see us not always have to use that
rule, and we can vote and support good people and get them out
to the floor and get them voted on. But that would be about as
early as I think you are going to be able to have a vote on
your nomination. But that will be good if we could get that all
done.
So, with that--
Senator Sessions. Mr. Chairman, I would just offer for the
record a strong editorial in support of Attorney General Pryor
from the State's largest newspaper, the Birmingham News.
Chairman Hatch. Well, without objection, that will go in
the record, and I want to compliment the State of Alabama for
having such high-quality people working for them as you and
those who associate with you and work with you. I think it is a
real tribute to you that you have been able to handle some
very, very difficult questions today with aplomb, with ability,
with a keen sense of the law, and with a straightforward
approach towards always sustaining the law of this land that
you will be obligated to sustain. And that is all we can ask of
you.
And, with that, we are grateful to have had you and your
family here. I thought your two little daughters were terrific
to last as long as they did without making any noise or
difficulty. You tell them we are real proud of them, and your
wife as well.
So, with that, we will recess the Committee until further
notice.
[Whereupon, at 3:49 p.m., the Committee was adjourned.]
[The biographical information of Ms. Stuart, questions and
answers, and submissions for the record follow.]
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