- The Washington Times
Tuesday, January 24, 2017

As President Trump nears a decision this week on his Supreme Court nominee, conservative groups are actively trying to derail at least two of the judges reported to be at the top of his list, saying they can’t be relied on to pursue conservative goals from the federal bench.

One group is running ads accusing 11th U.S. Circuit Court Judge William Pryor of showing hostility toward religious liberty in a 2011 case, and another is warning Mr. Trump not to pick 10th U.S. Circuit Court Judge Neil Gorsuch, saying he has not shown enough devotion to pro-life causes.


Mr. Trump met with top senators Tuesday to begin the consultation process. He said he wants to make his decision this week and announce the nominee next week.


SEE ALSO: Donald Trump to name Supreme Court pick next Thursday


The next justice will tip the ideological balance on the now-deadlocked Supreme Court and replace Antonin Scalia, a conservative stalwart whose seat has been empty since his death nearly a year ago.

Public Advocate, run by conservative activist Eugene Delgaudio, has launched online ads in the Washington area trying to raise opposition to Judge Pryor, a former Alabama attorney general, saying he didn’t do enough to protect Alabama Chief Justice Roy Moore in a 2003 legal battle over posting the Ten Commandments at his courthouse.

“Public Advocate has budgeted a lot of money refuting some of the legal issues [Judge] Pryor takes so lightly, and as I point out frequently: No other judge has removed an elected official, like Roy Moore, for believing in God and the Ten Commandments in the history of our country,” Mr. Delgaudio said.


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His ads also highlight a case in which Judge Pryor was involved in which the appeals court ruled that a college did not discriminate against a student who was expelled for refusing to attend a gay pride parade. Going to the parade was part of “remediation” measures for the Christian student, who was studying counseling.

Alliance Defending Freedom, a religious liberties law firm, represented the Christian student but declined to comment to The Washington Times about Judge Pryor’s possible selection.

The Judicial Action Group said Judge Pryor’s judicial record demonstrates that he “failed to interpret the Constitution as the framers intended.”

Some pro-life activists, meanwhile, say Judge Gorsuch would not meet Mr. Trump’s pledge to put pro-life judges on the federal bench.

Andrew Schlafly, a lawyer at the Legal Center for Defense of Life and son of the late conservative activist Phyllis Schlafly, said Judge Gorsuch uses pro-choice terminology in his writings and may not be willing to overturn the 1973 Roe v. Wade decision that established a national constitutional right to abortion.

“Gorsuch is not pro-life,” Mr. Schlafly said. “That would break Trump’s pro-life pledge to pick Gorsuch.”

Defending the choices

Carrie Severino, chief counsel and policy director at the conservative Judicial Crisis Network, said the attacks on both judges were misplaced.

“Pryor does have a very, very solid record on having a principled approach to the Constitution,” Ms. Severino said. “He’s a stellar lawyer, so I think he would be an excellent choice.”

As for Judge Gorsuch, she said, those attacking his record are looking for the wrong characteristics in a justice.

“It’s important for the serious pro-life groups to make clear that they’re not looking at people who are supposed to be basically activists, bypassing the law on any issue,” she said.

Judge Gorsuch, through the clerk of court for the 10th Circuit, declined to comment. Judge Pryor did not respond to a request for comment.

American Family Association public policy analyst Abraham Hamilton III said Mr. Trump and congressional Republicans dare not “err in filling this vacancy,” saying the pick must live up to the legacy of Justice Scalia, one of the most forceful conservative voices on the court for decades.

He said Judge Pryor had a distinguished record but was not sure he lives up to Justice Scalia’s vision “as an originalist constructionist” in some areas of constitutional law, including religious liberty.

“The country would be served best by filling Justice Scalia’s vacant seat with a Scalia-like nominee,” Mr. Hamilton said.

Mr. Schlafly said he was worried about who had Mr. Trump’s ear in the selection process. He pointed in particular to the Federalist Society, a group of conservative and libertarian law professors, students and scholars.

“The problem is really Trump’s advisers, to be honest with you,” Mr. Schlafly said.

Mr. Trump said the Federalist Society, The Heritage Foundation and other conservative activists helped him shape his initial list of potential nominees, which he released in an unconventional move in the middle of the presidential campaign. The list won widespread praise from conservatives and helped him consolidate support among the Republican base after a contentious primary.

Democrats have signaled that they will fight whomever Mr. Trump picks if they deem the nominee out of the mainstream. Many Democrats remain angry that the Republican Senate majority blocked any vote before the election on President Obama’s nomination of Merrick Garland, chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, to fill the Scalia seat.

“Clearly, what they did with Garland was wrong, but we’re not playing tit-for-tat here. We want a mainstream nominee because we want what’s right for America,” said Senate Minority Leader Charles E. Schumer, New York Democrat.

But White House spokesman Sean Spicer countered in his Tuesday briefing, “I think it’s pretty mainstream to support the Constitution, pretty mainstream to respect, to follow the law and not to create laws from the bench.”

Senate Majority Leader Mitch McConnell, Kentucky Republican, rejected Democratic complaints about how the Garland nomination was handled. He said there was a difference between stopping a nominee from a lame-duck president in the months ahead of a presidential election and stopping a pick at the start of a president’s tenure.

He also said that when Republicans were in the minority in the Senate, they didn’t mount filibusters to block nominees in the first years of either President Clinton or Mr. Obama’s administrations.

“What we hope would be that our Democratic friends would treat President Trump’s nominees in the same way we treated Clinton and Obama,” Mr. McConnell said.

Dave Boyer and Stephen Dinan contributed to this report.


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