Over the past few weeks many of you have expressed alarm over the record of Judge William Pryor, who is frequently mentioned as a potential replacement for Justice Scalia on the Supreme Court. Of course, I share your concerns. I have talked to, and corresponded with, many of you personally, but I thought it best to address this matter in writing and in one place.
First, I will address concerns about Pryor’s record in two of his decisions from 2011, and second I will address concerns regarding whether it is likely that Trump would nominate Pryor.
Concerns with the judicial record of Judge Pryor center on two of his activist decisions on the U.S. Court of Appeals for the Eleventh Circuit. First, in Glenn v. Brumby, 633 F.3d 1312 (11th Cir. 2011), Pryor usurped legislative power by purporting to judicially create – without precedent and without constitutional and statutory support – a new “transgender” civil right to employment, including a man's use of the women’s restrooms in the workplace. Second, in Keeton v. Anderson-Wiley, 664 F.3d 865 (11th Cir. 2011), Pryor affirmed the expulsion of a female Christian student from a state college for refusing to engage in a “remediation plan” of her views on sexuality which included the suggestion that she attend a “Gay Pride Parade.”
The details in these cases are very concerning and are provided in our “Research Memorandum – Pryor Decisions in Glenn and Keeton.” Pryor's rulings were inconsistent with the meaning of the law, and the intent of the Framers of the Constitution.
First, I don’t pretend to have any special knowledge about who Trump will nominate. However, I get the sense that he will not nominate Pryor for the following three reasons.
First, Trump has vowed to nominate great justices with deep records of commitment to the Constitution – and Pryor does not fit that bill. (More on that here.) Trump promises to be a different kind of Republican President, and I honestly think he does not want to repeat the errors of Presidents Gerald Ford, Ronald Reagan, George H.W. Bush, and George W. Bush who all had bad nominations to the Supreme Court. Those bad nominations continue to plague this Nation and chip away at the legacies of those Presidents to this day and, clearly, Trump does not want to repeat that monumental, generational mistake.
Second, if Trump nominated Pryor it would likely create a political storm. The fact that I am having to write this letter to you confirms that one is potentially brewing. Conservatives voted for Trump in record numbers because of the Supreme Court, and conservatives want nothing more than solid conservative judges. If there is one thing they will not stand for it is activist judicial nominees. While Pryor is conservative on some issues, he is undoubtedly liberal on others, especially on issues most important to social conservatives. But more importantly, in key cases Pryor’s judicial philosophy is demonstrably activist, and unfaithful to the Constitution and the Framers’ intent. (Again, more on that here.)
If Trump nominated Pryor it would risk irreparably damaging Trump’s Presidency. In short, it would make no sense for Trump to initiate a confrontation – in January of 2017 – with his own base – on the one issue his base cares about most – over a nominee that does even not fit Trump’s own criteria of having a deep record of commitment to the Constitution. That simply makes no sense. Not to mention, Trump himself wants another Antonin Scalia – not another Anthony Kennedy – and Pryor is more like Kennedy than Scalia.
The third reason I do not think Trump will nominate Pryor is because conservative Senators rightly have major concerns about Pryor, and his nomination would open up confirmation battles on two fronts: the left and the right. As expected, Senate Democrat Leader Schumer is already rallying Democrats to vote against almost any Trump nominee. So, Trump will certainly have a battle on the left. However, if Pryor were nominated, Trump would also incite a battle on the right with conservative Senators. (See Bush’s failed nomination of Harriet Miers.)
With the filibuster still intact, Senate Republicans need Republican unity to confirm a nominee, and a nominee like Pryor would likely fracture off conservative opposition and create a strategic crash. That is not a result desired by anyone – except of course liberals.
For the above reasons, I do not think Trump will nominate Judge Pryor to the Supreme Court.
Closing and Prayer
In closing, please earnestly pray for President Trump and his team of advisers on this issue. They do understand the gravity of this decision. They know this is the most consequential decision of Trump’s early and promising Presidency. It is essential that he get it right and he and his team need supernatural wisdom from God.
Here is how I recommend we pray:
“Father God, we partner with You in the name of Jesus and pray that only your person will take Scalia’s seat on the Supreme Court and that all others will be stopped!
Please bless and give great wisdom to President-Elect Trump, Vice President-Elect Pence, Leader McConnell, Chairman Grassley, key Senators, and their advisors to select your Justice.”
Warmly, hopefully, and prayerfully,
Phillip L. Jauregui
Judicial Action Group