In this week’s Wall Street Journal, Eleventh Circuit Judge William H. Pryor, Jr. essentially accuses retired Justice Sandra Day O’Connor of being thin-skinned for waging her recent campaign – with speeches, an op-ed, and a big conference – against attacks on judicial independence. Problem is, Pryor says nothing that O’Connor hasn’t been saying and totally skates by the most salient things she has been saying.
The main point of Judge Pryor’s piece is that criticizing judicial opinions, even vociferously, doesn’t compromise judicial independence and is healthy for our system of government. But who disagrees with that? Not us. And not Justice O’Connor, who in the very op-ed that Judge Pryor criticizes, made precisely the same point.
So why did Judge Pryor bother to write the piece? Perhaps because, like every hard right conservative, he’ll do whatever he can to distinguish himself (however artificially) from a Justice who, despite her overall conservatism, has long been considered the Right’s bogey-woman? Hard to say.
What’s not hard to say is that Judge Pryor completely overlooks the important distinction Justice O’Connor has been making between criticizing judges on the one hand and intimidating them on the other. Her concern is with the latter, not the former. Her concern is with punishing judges for unpopular decisions by threatening to cut their salaries, stripping them of their jurisdiction to hear certain cases, and eliminating their immunity and subjecting them to censure. Her concern is not, as Judge Pryor suggests, with the mere use of harsh words.
Judge Pryor says the best way for judges to escape virulent attacks is not to complain about them, but to exercise judicial restraint – ironic advice from a man who, as Attorney General of the state of Alabama, aggressively urged court after court to cut down landmark federal laws in the name of states’ rights. Among his targets were the Violence Against Women Act, the Clean Water Act, the Family and Medical Leave Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, and the Endangered Species Act. Now of course it’s possible that Judge Pryor sees a difference between his role as AG and his role as a judge and will now eschew the activism he advocated before. But given how stridently he pressed his views as Attorney General (in one case, thirty-six other state AGs opposed his lonely position), and given his recent vote to join a concurrence that flouted both congressional intent and settled precedent on the Voting Rights Act, such restraint may be too much to hope for.