JUDGES' RELIGION NOT AN ISSUE, PRYOR SAYS Jurist Takes on Questions About Catholics on the Bench
BY STEPHANIE FRANCIS WARD William H. Pryor Jr., a judge on the 11th U.S. Circuit Court of Appeals, is no stranger to controversy. His 2003 nomination was filibustered by Democrats. And he was put on the bench in a recess appointment in 2004 before finally gaining U.S. Senate confirmation last year. So it should come as no surprise that Pryor has addressed a controversy that bubbled under the surface of his confirmation hearing as well as recent hearings on two U.S. Supreme Court nominees-whether religion affects judging. Roman Catholics are now a majority on the U.S. Supreme Court, yet some charge that religion is still being used as a political football. Conservatives charge that liberals are blocking anti-abortion nominees simply because of their religion while liberals counter that the real issue is whether deeply held beliefs will influence judicial decision-making. Pryor addressed the issue at the University of Notre Dame, where he delivered a speech on the religious and judicial duties of Catholic judges. His address was part of the university's Catholic Think Tank of America lecture series. The thrust of Pryor's Jan. 24 speech was that his job as a judge is to apply U.S. law, not Catholic beliefs, to his opinions. He took an oath on the Bible to uphold the law, he told the audience, and to break that promise would be a sin. A practicing Catholic and former Alabama attorney general, Pryor's circuit court nomination came under fire in part because of comments he had made in opposition to abortion and on other social issues. He was confirmed to the Atlanta-based court by a 53-45 Senate vote. At Pryor's confirmation hearing, one senator asked whether Democrats who opposed Pryor because of his anti-abortion views were in effect saying that Catholics should not be federal judges. An ad supporting Pryor was even more pointed, accusing Democrats of imposing an unconstitutional religious test on nominees. It featured a picture of a courthouse with a sign reading, "Catholics need not apply." In his speech, Pryor compared the work of mail carriers to that of federal judges. If your job is to deliver mail, he said, Catholic faith holds that you should respect the rules of privacy and prompt delivery, regardless of whether the mail consists of get-well cards, Bibles, medicine or legal pornography. "A judge similarly applies the law impartially in a variety of cases in which the law protects the poor, victims of wrongdoing, the integrity of the family and religious freedom," he said. "And the judge respects the law when it does not empower him to prevent a third party from committing an immoral act." He also mentioned capital cases. While the Catholic Church may oppose the death penalty, Pryor said, affirming a sentence would not be a sin. According to him, Catholic scholars have taken the position that when a judge affirms such a sentence, he or she is not approving of the practice but concluding that the trial court did its job. "As a judge, I am not a moral philosopher who is given the authority to use a personal moral perspective to update or alter the text of our Constitution and laws," Pryor said in his speech, which is expected to be printed in the Spring 2006 issue of the Yale Law & Policy Review. "The business of using moral judgment to change the law is reserved to the political branches, which is why the officers of those branches are regularly elected by the people," he continued. "A judge's task is limited to serving as an umpire so that controversies between citizens and officers of their government may be resolved based on the law." Previously in American history, there was a bias against Catholics in government, says John Leubsdorf, a professor at Rutgers School of Law-Newark. Today, he says, any religious questions posed to Catholic federal court nominees are driven by the religious right, who made religion an issue in the past decade when they encouraged decision-makers to look to their faith for guidance in their decisions. The legal ethics professor mentions the hot-button issues of abortion, the death penalty and same-sex marriage. It's a concern for some senators, Leubsdorf says, that judicial nominees may have personal convictions that would interfere with their judicial abilities to decide cases in these areas. "So I don't really think it's being anti-Catholic if you think someone has beliefs that you think would lead to the wrong decisions," he says. But "if you begin regarding all Catholics as prima facie subjects [of bias], we would have a problem." Indeed, some say being Catholic is a plus for federal judicial nominees like Pryor, who are seen as politically conservative. "He tries to portray himself as a victim because he's Catholic, and that's not the issue at all," says Rev. Robert F. Drinan, a Jesuit who teaches human rights and legal ethics at the Georgetown University Law Center in Washington, D.C. "The issue is his temperament on these issues." He dismisses Pryor's arguments regarding faith and judicial decisions as "simplistic." "The court was designed as a unique entity, with people who have lifetime tenure deciding things beyond what Congress does," says Drinan, a past chair of the ABA Section on Individual Rights and Responsibilities. "It's kind of silly to say they just have to follow what the law is. Judicial review says that every law has to be consistent with the Bill of Rights, and some of the best judges have overturned laws." Others applaud Pryor's take on religion and judicial review. "It's right on the money," says Michael R. Merz, a Catholic who is chief magistrate judge for the U.S. District Court for the Southern District of Ohio. Since he was appointed in 1984, Merz says, he has reviewed many habeas petitions. "The Catholic Church has come down strongly against the death penalty, but I do death penalty work every day," he says. "I see the importance of doing that work honestly and fairly, and making sure that if the democracy decides we're going to have the death penalty ... then by damn it's going to be done according to the law." Merz also says that while there has been bias against Catholic judges previously, it's not much of an issue today. He mentions attending the 2005 Red Mass in Washington, D.C. A Catholic tradition, the Mass is held the Sunday before the opening session of the U.S. Supreme Court. The event was also attended by Cardinal Theodore McCarrick, President Bush, Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Anthony M. Kennedy, Antonin Scalia and Stephen G. Breyer. "We know that there were questions [put to judicial nominees] by Protestants out of suspicion that Catholics can't be loyal to the country," Merz says. "But things have really changed, and people are beginning to see that nobody's taking dictation from the Pope." (c)2006 ABA Journal Joel L. Sogol Attorney at Law 811 21st Ave. Tuscaloosa, Alabama 35401 ph: 205-345-0966 fx: 205-345-0971 email: [EMAIL PROTECTED] Ben Franklin observed that truth wins a fair fight -- which is why we have evidence rules in U.S. courts. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
