According to Eliana Johnson at Politico, President Trump has narrowed his list of potential Supreme Court nominees to three: Judge Neil Gorsuch, Judge Thomas Hardiman, and Judge William Pryor. Eliana reports that Pryor, once considered the frontrunner, now is thought to be “fading.”
Pryor has the advantage of being backed by Sen. Jeff Sessions who is about to become Attorney General. He was also mentioned, along with Judge Diane Sykes, by Trump last February as the kind of Justice he would be looking for as president. And Pryor has long been highly regarded by movement conservatives.
Working against Pryor might be his age. He’s only 54, but Gorsuch is five years younger and Hardiman three years. The Supreme Court being what it has become — the potential arbiter of almost everything — partisans prefer young appointees because they are likely to serve longer. Sad to say, every year matters.
Also working against Pryor might be the vehemence of Democratic opposition. Pryor ran into a buzz saw before finally to being confirmed as court of appeals judge. Gorsuch and Hardiman were confirmed essentially without opposition.
Trump has the votes to confirm Pryor, but the Senate would probably have to change its rules — i.e., eliminate the filibuster — to accomplish this. That might not be necessary for the other two.
Finally, Pryor has run into strong criticism from some social conservatives. The criticism centers around two decisions involving gay and/or transgender rights and religious freedom. I mentioned this controversy here, and cited a ScotusBlog article discussing the cases (under the heading “LBGTQ rights”).
Before presenting my views on the criticism of Pryor by some social conservatives, I will link to two more pieces on the subject. This one, by Judicial Action Group, makes a case against Judge Pryor. This one, by John Malcolm of the Heritage Society, defends Pryor.
Now for what I think:
The plaintiff was a student at a state college who was working towards a degree in school counseling. She described herself as a Christian committed to a religiously-based belief that homosexuality is immoral and a voluntary choice.
School officials asked her to participate in a program designed to address her views on homosexuality, which the school claimed violated the code of ethics of her intended profession — a code the school was required to adopt and teach to retain accreditation. Keeton refused, citing her First Amendment rights to free speech and the free exercise of her religion.
She sought a preliminary injunction against the school. A plaintiff seeking a preliminary injunction faces the burden of proving (1) a substantial likelihood of success on the merits, (2) an irreparable injury, and (3) that the balance of harms weighs in her favor or that an injunction would serve the public’s interest.
The district held a hearing at which Keeton did not testify. The district court ruled that she failed to make the showings required for a preliminary injunction.
The Eleventh Circuit affirmed in an opinion written by a liberal judge, Rosemary Barkett. Judge Pryor voted with the majority and wrote a concurring opinion.
The court ruled that, at this early stage of the proceedings, Keeton had failed to establish that the school singled her out for disfavored treatment because of her views on homosexuality, as opposed to a desire to ensure that she complied with the current ethical standards of her profession. It remanded the case to the district court for a trial on the merits.
In his concurring opinion, Judge Pryor noted the sparseness of the record at this stage. Speaking to the likely outcome of the case on the merits, he stated that there was some evidence that the school intended to discriminate against Keeton because of her views on homosexuality.
He also pointed out that although the court has previously held that universities can enforce codes of ethics with respect to school-sponsored activities (like a clinical practicum), “we have never ruled that a public university can discriminate against student speech based on the concern that the student might, in a variety of other circumstances, express views at odds with the preferred viewpoints of the university.”
In addition, Pryor insisted:
As the First Amendment protected the professionals who successfully advocated against the then-prevailing view of the psychiatric profession [that homosexuality was a mental disorder], so too does it protect Keeton should she decide to advocate that those professionals got it wrong.
As I see it, Judge Pryor’s vote in Keeton was based mainly on the procedural posture of the case, not an insufficient regard for free speech and religious liberty. I find neither his vote nor his opinion problematic. (In this law review article, Judge Pryor provides us with a good sense of the man, his faith, and his approach to judging.)
Glenn v. Brumby decided a constitutional issue, not a request for a preliminary injunction, and thus potentially raises more serious concern. Glenn, a transsexual, was born a biological male but decided to begin the transition process to becoming a woman. When he informed his employer of this fact and said he would come to work dressed as a woman (a prerequisite to sex-reassignment surgery), he was immediately fired.
Glenn sued, alleging sex discrimination in violation of the equal-protection clause of the 14th Amendment. The district court ruled in Glenn’s favor. The Eleventh Circuit, in another opinion written by Judge Barkett, affirmed by a 3-0 vote. Judge Pryor did not write separately.
In my view, it was wrong for the employer, the Georgia General Assembly’s Office of Legal Counsel, to fire Glenn. But was it unlawful?
Judge Barkett said it was because the Supreme Court has ruled that unlawful sex discrimination encompasses discrimination based on a failure to conform to stereotypical gender norms. In that case, Price Waterhouse v. Hopkins, a woman was denied partnership in her firm because she used profanity and was considered too “macho” by some of her male colleagues.
I do not believe that Price Waterhouse, which did not involve any transgender issue, requires the conclusion that Glenn’s employer engaged in sex discrimination. That result can be teased from Price Waterhouse, but it is not compelled. I probably would have voted against Glenn.
I assume, however, that the concern over this decision resides in the view that it manifests judicial activism — stretching to find rights that have no basis in statutes, the Constitution, and precedent — not in the fact that a transsexual won in court. So the issue in terms of Judge Pryor as a Supreme Court nominee is whether the Glenn case shows him to be an activist judge.
I don’t think it does. Though I may disagree with the result, I don’t think it was indefensible. Judge Pryor has been deciding cases for more than ten years. No one will agree with all of his votes.
If there is a pattern of activism and inventing rights, then Trump should not nominate him for the Supreme Court. I don’t see such a pattern. I see one case where he went further than I might have, but did so based on a Supreme Court decision that plausibly can be read as supporting the result he reached. This certainly shouldn’t disqualify him.
Finally, it’s important to note, as John Malcolm does, that Glenn did not reach the question of whether the plaintiff, as a biological male, would be entitled to use the women’s bathroom. The court made it clear that this issue was not before it. The employer raised it only after the case had been filed, so the court didn’t need to decide, and did not decide, whether this rationale justified the firing. (The court did point out that the argument was highly implausible because the office had only single-occupancy restrooms; it is hard to disagree with this).
There are reasons why Trump might decide to nominate Judge Pryor and reasons why he might decide to nominate one of the other fine contenders. The claim that Pryor has shown himself to be an activist judge by virtue of his rulings in Glenn and Keeton should not be among the reasons weighing against nominating Pryor. In my view, he has shown no such tendency.