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.”
Until Donald Trump won the election and President Trump made it clear he intended to move expeditiously on nominating a replacement for the great Antonin Scalia cultural conservatives were content to take the word of the Federalist Society and others in the legal profession that all the potential nominees were “conservatives.”
However, when President Trump said that he planned to forward a nomination to the Senate in the first two weeks after the Inauguration conservatives began to drill down on the records of those on President Trump’s list and what they found about Judge William H. Pryor Jr., a judge on the 11th U.S. Circuit Court of Appeals, began to raise serious concerns about where the judge stood on religious liberty and the extra-legislative creation of “rights” for allegedly transgender individuals.
Now, what was a trickle of cultural conservatives voicing concern about Judge Pryor has begun to build into a steady stream of opposition.
Focus on the Family founder James Dobson and Family Research Council President Tony Perkins, have quietly circulated their persistent concerns about Pryor, and Tim Wildmon, president of the American Family Association has been considerably less quiet.
“Pryor may be 90 percent good on his decisions, but that is not good enough,” Wildmon told J.C. Derrick of World Magazine. “We need someone who will be just like Scalia, 100 percent, in terms of their judicial philosophy."
Pryor’s defenders say he was only adhering to applicable precedents and note he did not write either of the opinions most troubling to conservatives. However, critics argue Pryor joined the decisions in full, without disagreement, and say Glenn established a new precedent.
Phillip Jauregui, president of Judicial Action Group, said the Glenn decision primarily used a case, Price Waterhouse v. Hopkins, that was about traditional gender norms, not transgender rights.
The majority opinion in Glenn v. Brumby, observed Derrick, is a case involving a biological male fired after he said he wanted to dress as a woman and begin medical treatments.
Pryor concurred with the circuit court’s liberal former Judge Rosemary Barkett, ruling the Equal Protection Clause of the U.S. Constitution protected the employee from discrimination based on sex—which the court interpreted to include gender identity. Slate writer Mark Joseph Stern called the opinion “absolutely revolutionary” for transgender employment rights.
“The woman in Price Waterhouse never said she was a man, never tried to use a men’s restroom, and never demanded that her colleagues refer to her as a man,” Jauregui told Derrick. “The only way to get from Price Waterhouse to Glenn is judicial activism.”
What is most troubling about the Glenn decisions is that various Obama administration agencies, including the Departments of Justice, Labor, and Education, began citing Glenn as their justification for advancing transgender litigation and regulations.
However, from our perspective Pryor’s most troubling decision is the case of Keeton v. Anderson-Wiley, involving a Christian counseling student whom a state college expelled after she refused to agree to remediation measures (such as attending a gay pride parade) intended to change her views on homosexuality. A three-judge panel, including Pryor, ruled the school did not discriminate against the student, in part because the school would treat anyone with her beliefs the same way.
Now, let’s understand in practical terms what Judge Pryor’s decision in Keeton v. Anderson-Wiley means; it means he believes the state – because this was a state university – can undertake the forced “reeducation” of a Christian and that it could treat anyone with her beliefs the same way.
Clearly, such a view of freedom of conscience and religious liberty is inimical to originalism and a constitutional conservative’s understanding of the First Amendment and the limits on the government’s power to coerce citizens to abandon their religious beliefs.
There’s one more thing we find strange about the lobbying in favor of Judge Pryor; many of his most outspoken advocates were vociferous #NeverTrumpers. The hard sell from the Republican side of the legal establishment smacks of cronyism, rather than a commitment to the laws passed by Congress, conservative principles, originalism and the plain language of the Constitution.
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.