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Where's the Text?
January 18, 2017

Dear Friends and Leaders,

As you know, one of the names recommended to President Trump for nomination to the Supreme Court is Judge Pryor.

First, I don’t think President Trump will nominate him.  Second, I don’t think the Senate would confirm him?  Almost all Democrats will vote against any nominee, and there are many conservative red-state Senators that would not – could not – vote for Pryor on the basis of his rulings in Glenn and Keeton.  More on that here and here.

Setting those practical matters aside, there is another matter to address.  Some defend Pryor’s activist ruling in the Glenn trans-gender case by claiming that Pryor is a “textualist.”

OK, so let’s look at the text.

The problem with Judge Pryor’s creation of a new transgender right in Glenn is that it has no support in the text of the laws at issue, and zero support in binding precedent. 

Pryor’s decision in Glenn represents everything that conservatives and constitutionalists loath about activist judging:  the creation of new vogue liberal policy with no consent from the People, no basis in the text of the laws, Constitutions, and no basis in court precedent.

If Pryor is a “textualist” as some claim, then where is the “text” to support his creation of a new transgender right in Glenn?

  • There is not a transgender right in the 14th Amendment (can you imagine the people in 1868 who drafted that Amendment wanting their daughters to share bathrooms with men who think they are women?),
  • There is not a transgender right in the Congressional Act at issue (42 U.S.C. 1983) (Congress never did that),
  • And, there is not even a “transgender” right in any binding precedent from the Supreme Court or the Eleventh Circuit.  (Pryor can’t even blame the majority-activist Supreme Court for his decision in Glenn).

There is a way to create new policy; it’s called Legislation!  And judges have zero legislative power.  The very first sentence in the entire Constitution makes this point abundantly clear:  “All legislative Powers herein granted shall be vested in a Congress of the United States.”  (U.S. Const. art. I. Sec. 1.)

But Judge Pryor’s decision in Glenn is pure, unconstitutional, judicial legislation, and judicial legislation with a tragic result.

Remember, the anatomical male in Glenn wrote in his brief to Pryor that it was no big deal if he used the women’s restroom with school-children (See, 2011 WL 1977478.) It is disputed whether Glenn actually did this, but it is undisputed that Glenn told Judge Pryor it wouldn’t be a problem if Glenn took his anatomically male self into the women’s restroom with school-girls visiting the Georgia State Capitol.

Pryor ruled in his favor!  Pryor created for him and his fellow pervs – out of thin air – a new trans-gender civil right.  That’s not “textualism” - that’s crazy.

Perhaps that is why over the last forty years Republicans have gotten it wrong 50% of the time on Supreme Court nominees (Stevens, O’Connor, Kennedy, Souter, and Miers), and Democrats have gotten it right 100% of the time.

That foolishness needs to change!  And it needs to change now!

When evaluating Supreme Court candidates who will serve for thirty or more years, we must assume they will vote consistent with their past records.

If Judge Pryor voted in the Gloucester (NC trans-bathroom case) consistent with how he voted in Glenn, then he would be a whole lot more like the socially liberal Justice Kennedy, than Justice Scalia.  Social liberals may be OK with another Justice Kennedy.  I am not.  I want another Justice Scalia.

More importantly, that is what President Trump wants.

Phillip L. Jauregui
Judicial Action Group