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Sometimes in the game of judicial politics, presidents will nominate a so-called “stealth candidate” — a little-known lawyer or judge with no public record on controversial legal issues who can slip under the Senate’s radar to confirmation. As a nominee to the 11th U.S. Circuit Court of Appeals, Alabama Attorney General William H. Pryor Jr. would be the opposite — a B-52 candidate, if you will — who has spent his career flying high, carpet-bombing the landscape with conservative views on federalism, abortion, church-state separation and a host of crime and punishment issues. The Birmingham News reported Jan. 5 that President George W. Bush is considering the 40-year-old Pryor, who goes by the name Bill, for the 11th Circuit seat vacated in 2000 when Judge Emmett Ripley Cox took senior status. Bush on Jan. 7 made room for Pryor when he passed over his original choice for the 11th Circuit, William H. Steele, a federal magistrate judge from Mobile, Ala. Bush tapped Steele, who had been opposed by black groups protesting his decisions in two civil rights cases, for a seat on Mobile’s district court. Bush administration officials could not be reached to discuss the matter. A spokeswoman for Pryor said he had no comment on the story, and Steele could not be reached. A spokesman for Sen. Jeff Sessions, an Alabama Republican who serves on the Judiciary Committee, would not elaborate on comments in the newspaper story that Sessions believes Pryor “would be a magnificent circuit judge” and that Steele would be nominated “for a federal judgeship shortly.” A TRIAL BALLOON? One Democratic Senate Judiciary Committee aide speculated that the news was merely a White House trial balloon. “It’s hard to believe,” the aide said. “There are so many obvious extreme right positions. … Pryor would be a great candidate to take on the White House.” A Pryor nomination hearing certainly would open up debates on a wide range of legal issues dividing Democrats and Republicans — as Pryor seems to embody the controversial characteristics of Bush’s other bench picks. Most significantly, Pryor has been a partner with Ohio lawyer and 6th Circuit nominee Jeffrey S. Sutton in a highly successful assault on Congress’ power over state governments. As Alabama attorney general, Pryor hired Sutton to represent Alabama in arguing that federal laws prohibiting discrimination by age, disability or national origin violated the Constitution’s protection of states from suits. In all three cases, Pryor’s and Sutton’s arguments were approved by identical 5-4 majorities at the U.S. Supreme Court. Sutton’s 6th Circuit nomination has been mired in opposition from civil rights groups enraged over his piloting the federalism arguments at the Supreme Court. Now that Republicans have retaken control of the Senate, holding a 51-49 edge, Sutton could finally break through to confirmation. ABORTION OPPONENT But a Pryor nomination would face certain opposition on less intellectual, more emotional fronts as well — such as Roe v. Wade, the 1973 high court decision holding that abortion rights were protected by the 14th Amendment. A 1997 Wall Street Journal article quotes Pryor as saying, “I will never forget Jan. 22, 1973, the day seven members of our highest court ripped the Constitution and ripped out the life of millions of unborn children.” Pryor also endorsed a bill in the Alabama legislature that would have allowed lawyers who oppose abortion to represent the state against minors who went before judges to seek permission to have an abortion without their parents’ knowledge. Elizabeth A. Cavendish of NARAL Pro-Choice America said Pryor resembled other Bush nominees about which the organization was “deeply concerned.” Washington lawyer C. Boyden Gray, a friend of Pryor’s and White House Counsel to the first President Bush, compared Pryor to Michael W. McConnell, a Utah law professor who last year won a hard-fought confirmation to the 10th Circuit. A vocal opponent of Roe v. Wade, McConnell pledged in his confirmation hearing to “conscientiously enforce the law, including laws and precedents I don’t agree with,” according to an Associated Press report. Similarly, Gray dismissed suggestions that Pryor wouldn’t respect Roe v. Wade as settled law: “There’s no room to maneuver. You follow what the law says.” CHURCH-STATE SEPARATION Wading into another hot-button issue, Pryor in 1999 successfully challenged a federal court order that prohibited public school officials from allowing any type of prayers at graduation or commencement exercises and forbade using public address systems for religious messages. In a speech to the Christian Coalition, Pryor said the victory at the 11th Circuit promoted “the perspective of our Founding Fathers that we derive our rights from God and not from government.” On another religion front, Pryor has been a longtime supporter of Alabama Chief Justice Roy S. Moore and his efforts to display the Ten Commandments in the rotunda of the Alabama Judicial Building. Last year, a federal judge said the monument violated the First Amendment’s prohibition of state-established religion and ordered it removed. Moore is appealing to the 11th Circuit and in December told the judge he was bound by the Constitution, not the federal court. Another friend of Pryor’s, Washington litigator Charles J. Cooper, said he thinks Pryor’s support of Moore wouldn’t go as far as defying federal courts: “You won’t see Bill Pryor associated with that kind of sentiment. … He will follow the decisions of the Supreme Court — even the ones he believes are wrong.” CLERKED FOR WISDOM A native of Mobile, Ala., Pryor graduated from Northeast Louisiana University and Tulane University School of Law, where he was editor of the law review and founder of the Tulane Federalist Society, a legal group popular among conservatives such as Justice Antonin Scalia and Attorney General John Ashcroft, as well as many of Bush’s judicial picks. However, Pryor’s first legal job was working for the late 5th Circuit Judge John Minor Wisdom, a relative liberal who earned a heroic reputation implementing desegregation rulings across the deep South. In an article after Wisdom’s death in 1999, Pryor explained that Wisdom told him he welcomed his conservative perspective as long as Pryor remained loyal to the judge and respected his role. HIGH COURT LOSSES Pryor’s controversial stands have not touched on racial issues, which last year sank one of Bush’s 5th Circuit nominees, Charles W. Pickering Sr., who was renominated for the seat Jan. 7. Nonetheless, the Senate Democratic Judiciary aide complained that the federalism argument espoused by Pryor and accepted by the U.S. Supreme Court “is a drive to limit the ability of Congress to attack discrimination.” Pryor is hardly undefeated at the Supreme Court, however. Last year, the high court ruled against Pryor’s positions in three significant cases touching on crime and punishment. In Alabama v. Shelton, 535 U.S. 654, which Pryor argued himself, the high court voted 5-4 to hold that the Sixth Amendment right to counsel included low-level offenses that carry even the slightest possibility of jail time. In Hope v. Pelzer, 122 S. Ct. 2508, a 6-3 Court said Alabama prison guards had no qualified immunity for their actions in punishing a prisoner by handcuffing him twice to a hitching post while the prisoner was assigned to chain gang duty. Finally, the Court ruled 6-3 in Atkins v. Virginia, 536 U.S. 304, that executing the mentally retarded violated the Constitution. Pryor had joined an amicus brief supporting Virginia. J. Richard Cohen, general counsel of the Montgomery, Ala.-based Southern Poverty Law Center, opposes many of Pryor’s stances. The center was one of three groups that brought the suit against Moore’s Ten Commandments monument. But Cohen said Pryor is “an extremely capable guy. … He knows the footnotes.” “He’s willing to engage you on the issues,” Cohen added. “He’d be a great guest on [the CNN show] ‘Crossfire.’”

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