JB

William H. Pryor Jr., President Bush's nominee for a seat on the 11th circuit, testified yesterday on Capitol Hill, the Washington Post reports. There were two things he said yesterday that gave me pause. The first one, even if true, is not particularly helpful, and the second one suggests that he is either not entirely candid or is living in a fantasy world.

Pryor's first comment came as he was asked about his very conservative views on a number of issues, including abortion, homosexuality and the separation of church and state. Pryor explained:

I have a record as attorney general that is separate from my personal beliefs," he said. "I have demonstrated as attorney general that I am able to set aside my personal beliefs and follow the law, even when I strongly disagree with the law."

I have no reason to think that Pryor is not sincere when he says this. But his record as Attorney General hardly shows him to be impartial, and if he thinks it does, then that is at least some evidence of what he thinks impartial judging would be. In any case, I wonder whether his assurances that he will follow the law should be sufficient comfort to those who find his personal views about the Constitution deeply misguided. After all, Attorney General Ashcroft and any number of conservative jurists, including Justice Clarence Thomas, have made similar promises to obey the law and not be guided by their own political preferences. Since he went on the bench, however, Justice Thomas has repeatedly shown that his opinions cannot be farily understood merely to be following the law; indeed, many of his opinions clearly reflect his personal convictions as well his very conservative political views, often views of the most extreme sort. And despite his repeated assurances that he would protect civil rights and civil liberties as Attorney General, Ashcroft, too, has demonstrated that in practice he has little concern for civil liberties in his enforcement decisions. Ashcroft may well believe that he has done nothing during his tenure to undermine civil liberties in this country, but I beg to differ, and the fact that he would believe this suggests that his sincerity is not a very good gage of his fidelity to basic civil liberties or to the Rule of Law.

As a result, even if Pryor is completely sincere in his belief that he will just follow the law, there is every reason to believe that he will take extreme positions if he is given a lifetime appointment as a judge. He will not be as free to take these positions as Thomas or Ashcroft have been, because he will be a lower court judge. Lower court judges are subject to constraints that Supreme Court Justices and Attorneys General are not. Nevertheless, lower court judges can in fact have an enormous practical effect on the development of the law through narrow or broad interpretations of precedents, through selective interpretations of facts, and on account of the practical reality that most appellate court decisions are never reviewed on the merits by the Supreme Court. I have no reason to believe, given his record before his nomination, that Pryor will be anything other than a jurist occupying the far right of the political spectrum. His politics will inevitably influence what he does, and because his politics are so extreme, (and with respect to issues like homosexuality, may I say, deeply unjust,) the influence will not, I think, work to the greater good of the country.

The second thing that Pryor said that gave me pause was a response to a question about the death penalty:

Defending his strong support for capital punishment, Pryor said the system has "extraordinary safeguards, many safeguards" to ensure that only the guilty are executed, that verdicts are free from discrimination and that the cases involve extreme and heinous crimes. "The system catches errors," he said.

Pryor said he was not aware of an innocent person being executed since the Supreme Court reinstated the death penalty nationwide in 1976. "If someone has a case they would like to present to me, I will certainly review it objectively, but I'm not aware of one," he said.

I'm not sure exactly how to interpret this. Perhaps Pryor was merely being cute and saying that he had never had the chance personally to review a specific report that conclusively demonstrated the innocence of a person who had been convicted and executed. But I don't think that's the best interpretation of what he said. I think he was saying that innocent people don't get executed in this country. Frankly, I think that is just unbelievable. Whether you support the death penalty or not, you must acknowledge that there is *some* error rate; the many reported cases of people who have been released from prison due to DNA evidence suggest that there are probably a number of innocent people who have been executed in this country since 1976. One can still defend the death penalty on the grounds that it is worth taking those risks if the quality of testing and access to justice is improved sufficiently. But it is a fantasy to deny that there is a problem here.

If Pryor actually believes what he seems to have said here, then I think he is engaged in wilful blindness about the nature of the criminal justice system in the United States. These statements suggest a person sufficiently enclosed in a worldview that recalcitrant evidence cannot get through. Such a judge, even if perfectly sincere and otherwise of the very best character, is unlikely to have the judicial temperament to mete out justice properly.

The President can do better than this in nominating judges. I wish he would.