Trump’s Supreme Choices William Pryor doesn’t deserve the attacks from some on the right.
http://www.wsj.com/articles/trumps-supreme-choices-1485562017
President Trump says he’ll make his first Supreme Court nomination next week, and it will be a telling moment. The power to fill the High Court seat left vacant by the death of Antonin Scalia is a major reason Mr. Trump won the election, and the right choice is vital to keeping faith with conservative voters.
Mr. Trump understands this, as he showed with his campaign list of 21 talented potential nominees. The White House appears to have whittled the list down to three appellate court judges. All three look distinguished before close inspection and would face a rough confirmation assault from the left. But it’s a particular shame that Judge William Pryor is taking abuse from some on the right for the sin of acting like a good conservative judge.
Judge Pryor, who is 54 years old, is a star on the Court of Appeals for the 11th Circuit and may be the closest of the three to Justice Clarence Thomas in philosophy. He has a long record of conservative jurisprudence, and he has displayed the kind of judicial modesty and respect for precedent that the Constitution intends for appellate judges.
This seems to have upset some on the right who prefer their judges to act like liberals and rule by policy preferences, not the law. They’ve criticized Judge Pryor for concurring in 2011 in Glenn v. Brumby in which a transgender male was fired when he began his transition to a woman. The employee sued claiming sex discrimination in violation of the 14th Amendment’s Equal Protection Clause and the 11th Circuit panel upheld the lower-court decision in favor of him who became a her.
Whatever one thinks of the LGBT agenda, Judge Pryor’s decision showed appropriate deference to Supreme Court precedent. The 11th Circuit’s decision faithfully followed the Supreme Court’s 1989 ruling in Price Waterhouse v. Hopkins that sex discrimination can also exist in the form of hostile sex stereotyping. Conservatives should want circuit-court judges to follow Supreme Court precedent—and it’s a sign of how a judge will treat the law if he’s elevated to the Supremes.
As Alabama’s Attorney General in 2003, Mr. Pryor also enforced the law against then Alabama Supreme Court Chief Justice Roy Moore, who had ignored a federal court order that he remove the Ten Commandments from the state court building. Mr. Moore claimed he had a religious duty to acknowledge God in the court building and so he was justified in defying a federal court order.
But down that road lies judicial anarchy, and Mr. Pryor was obliged to enforce the law. Since when do conservatives want AGs and judges who disdain the law in order to get the policy result they like? Judge Pryor would be a first-rate nominee, and Mr. Trump should ignore the caterwaulers on the right who wouldn’t sway a single GOP Senator.
Mr. Trump’s two other short-list judges also have records of deciding cases based on the Constitution’s text and original meaning. Neil Gorsuch, who is 49, is well known for his votes on the Tenth Circuit for religious liberty in Hobby Lobby v. Sebelius and Little Sisters of the Poor v. Burwell, which argued that businesses could act in accordance with their religious convictions.
Judge Gorsuch also has argued persuasively for reconsidering so-called Chevron deference, a Supreme Court doctrine that the Obama Administration used to drive a giant hole through the separation of powers and enhance the power of the administrative state at the expense of Congress.
Judge Thomas Hardiman, who is 51, serves on the Third Circuit with President Trump’s sister, Maryanne Trump Barry, which may have helped him make the short list. His father drove a cab for a living and Judge Hardiman did the same to pay his way through college. In Drake v. Filko Judge Hardiman’s dissent in a New Jersey case on handgun permits showed a strong constitutional reading of the Second Amendment. But he has shown less support for free-speech rights than we’d like, especially given the left’s use of campaign-finance laws to restrict political speech.
Mr. Trump could always surprise everybody by choosing someone else, or even someone off the list like the distinguished Sixth Circuit Judge Jeff Sutton. Most important is to choose a nominee with a long enough record of writing and judging so Mr. Trump’s supporters can be confident he or she will be another Scalia or Justice Thomas, not another David Souter.
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