In the celebration of President Donald J. Trump’s inauguration and the drama of his excellent inaugural speech the most important item on his agenda was left unspoken – the nomination of a Supreme Court Justice to replace the late and great Antonin Scalia.
During the campaign, then-candidate Donald Trump released a list of 21 potential Supreme Court nominees that was met with reaction from conservatives ranging from general approval to ecstasy depending on who you defined as a “conservative.”
President Trump said several weeks ago, that he planned to forward a nomination to the Senate in the first two weeks after the Inauguration, however, since that time the Trump transition team has gone dark on who was in the running.
However, my inside sources tell me that President Trump has narrowed the field to four finalists: Judge Diane Sykes of the 7th U.S. Circuit Court of Appeals; Judge Neil Gorsuch of the U.S. Court of Appeals for the 10th Circuit; Judge William Pryor of the 11th U.S. Circuit Court of Appeals; and, an unnamed “wild card” thought by many to be Senator Mike Lee of Utah.
From my perspective, Senator Mike Lee would be far and away the best choice, but there is also one potential nominee who should clearly be disqualified based on his record – and that’s Judge William 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 the Judicial Action Group’s “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.
Those of us who were around when President George HW Bush appointed obscure New Hampshire Supreme Court Justice David Souter to the US Supreme Court will recall that at that time Souter was sold by the Bush White House as a “conservative” Souter had no record on the major controversies at bar before the Supreme Court, particularly the cultural issues and those related to the size, scope and power of the federal government.
However, Souter’s conservative bona fides were vouched for by White House Chief of Staff John Sununu and that was enough to get reluctant conservatives to forbear opposition.
Souter’s rapid evolution into a big government social liberal who regularly allied himself with liberal Justices Ruth Bader Ginsberg and Steven Breyer confirmed in the minds of many conservatives that they must oppose any Supreme Court nominee who did not have a clear judicial record of originalism and strict construction of the Constitution.
Fast forward to the administration of President George W. Bush and his attempt to nominate his crony White House Counsel Harriet Meyers to the Supreme Court, once again some “conservatives” were willing to go along with the Meyers nomination, but a strong coalition of cultural conservatives, led by Gary Bauer, L. Brent Bozell III and others, followed the “Souter Rule” and eventually forced the nomination to be withdrawn.
Today, with the potential nomination of Judge William Pryor of the 11th U.S. Circuit Court of Appeals, conservatives are not faced with an unknown quantity whose views and judicial philosophy are not on the record.
We know where Judge Pryor stands, and while he has a good record on some of our issues, his willingness to create new protected classes and endow them with judicially created rights unmoored to legislation or the plain language of the Constitution and his failure to protect religious liberty clearly disqualifies him from consideration as a replacement for Justice Antonin Scalia.
Nominating Judge Pryor would be divisive to the conservative supporters President Trump brought to his historic election through his promise of pro-life constitutionalist judicial appointments. In Sen. Mike Lee, we'd have a true constitutionalist who would be supported by the entire right, thus he would be a unifying nominee, and would be a more appropriate originalist heir to the seat vacated by the late Justice Scalia. What’s more, Sen. Lee could also have the support of more of his current Democrat colleagues in the Senate, where he is liked and respected.