A few days ago, presumptive Republican nominee Donald Trump released a list of jurists he claimed would be his short list of potential appointees to the Supreme Court if he becomes President next year. The list is not composed of progressive individuals, if the reaction from the liberal Internet is to be believed. If the contenders were gathered together in, say, a cantina, it might be fair to state that, “you will never find a more wretched hive of scum and villainy.” But in the case of at least one of the names on the list, I might humbly suggest that such judgment (no pun intended) may be premature.
William Pryor is a 2005 George W. Bush appointee to the federal Eleventh Circuit Court of Appeals. Pryor, nicknamed “Wild Bill,” is infamous for certain homophobic statements, and for arguments he has made in legal briefs. I’ll cite two examples.
Before his nomination to the federal bench, he was Alabama’s attorney general, and in that role he filed an amicus brief in Lawrence v. Texas. Lawrence is the case that led to the overturn of all state laws against gay sex. Attorney General Pryor’s brief urged the Court not to declare “homosexual sodomy as a fundamental constitutional right,” arguing that acceptance of “a constitutional right that protects ‘the choice of one’s partner’ and ‘whether and how to connect sexually’ must logically extend to activities like prostitution, adultery, necrophilia, bestiality, possession of child pornography, and even incest and pedophilia.”
That’s pretty strongly indicative of Pryor’s thoughts about gay people, especially when you consider his brief was an amicus (“friend of the court”); Pryor didn’t directly have a dog in the fight—although presumably Alabama also had a sodomy law that would have been (and was) invalidated by Lawrence‘s win.
After eight years of Dubya, followed by several more years of a Republican-controlled Senate stonewalling many of President Obama’s judicial nominees, the Eleventh Circuit had taken on a considerable right-wing tinge.
Second, during the contentious U.S. Senate confirmation hearings on Pryor’s nomination to the Eleventh Circuit, he mentioned that as a result of “a value judgment,” he and his wife rescheduled a family vacation to avoid the annual “Gay Day” at Disney World.
Kevin Cathcart, who was the executive director of Lambda Legal when Pryor was nominated, said at the time, “William Pryor is the most demonstrably antigay judicial nominee in recent memory.”
I knew all these things about Judge Pryor when Lambda Legal and I won our lawsuit at the federal district court level in July 2010 and defendants Sewell Brumby and the State of Georgia appealed to the Eleventh Circuit. And I was worried. Pryor wasn’t on the record with anything about transgender people, and to be homophobic isn’t necessarily also to be transphobic, but it’s rare for a person to be one and not the other.
At the time there were a dozen or so judges on the court, and our case was going to be heard (and ruled on) by a randomly selected panel of three of them.
After eight years of Dubya, followed by several more years of a Republican-controlled Senate stonewalling many of President Obama’s judicial nominees, the Eleventh Circuit had taken on a considerable right-wing tinge. While no cases had yet tested the court on LGBT rights specifically, there had been recent decisions unfavorable to civil rights generally and to employees’ rights specifically. And Pryor had joined the majority vote in at least one of those cases. He was the personification of everything we imagined could go wrong with our suit. The lower court win could be reversed, and all the years of struggle would be for nothing.
The year 2010 came to an end and 2011 began to grind along. We didn’t know when oral arguments in the appeal would be heard; it could’ve been months or years. The only thing I did know was that with each passing day it was incrementally more likely that the date would be announced. I became an obsessive watcher of the Eleventh Circuit, reading up on the backgrounds of the judges, checking the progress of potential Obama nominees, and reading each new decision as it came down. I was in a constant state of nervousness. The odds were not in our favor.
Finally, in late October, my attorney Greg called with the news that we had a date for the oral arguments (early December), and our panel had been assigned.
I took a deep breath and held it as Greg said, “I have some bad news and some good news.”
“First the bad news,” he said, followed by his own long inhalation. “We got Judge Pryor.”
“Quickly, Greg,” I said, paraphrasing Peter O’Toole from the underappreciated classic, King Ralph, “The good news!”
The good news was much better: our other two judges were Rosemary Barkett and Phyllis A. Kravitch, two amazing women with long, solid track records for progressive judicial temperaments. I was immensely reassured; with these two on our panel, I felt confident of a 2-1 vote in our favor.
But a two to one vote is exactly as much as I expected. Everything I’d learned about Pryor told me he wouldn’t be on our side.
It was on the day of the arguments that I began to wonder otherwise. When Brumby’s attorney rose to defend their side, he was eviscerated. Figuratively, that is. Before he could get his first sentence out, Judge Pryor interrupted to say, “You have a big problem with Price Waterhouse.” Price Waterhouse v. Hopkins was the main precedent our lawsuit was premised upon.
The attorney stammered and stumbled through the next few minutes, enduring constant interruptions from Pryor and Judge Barkett (Judge Kravitch remained largely silent). He was trying to make the case that firing me for transitioning was somehow different from firing me for being transgender. The panel was having none of is, and Pryor finally advised the man to “take it up with Congress” if he didn’t like the current state of the law. Barkett then offered to “put [him] out of [his] misery” and let him sit down. She was laughing as she said it. The defendants’ attorney was laughed off the lectern. Literally.
The ruling, which came down a lightning-fast six days later, was 3-0. Whatever negative opinions William Pryor may have about LGBT people personally, in my case, at least, he didn’t let those thoughts cloud his judgment.
Which makes me wonder if his inclusion on Trump’s list was a mistake.
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