After Compromise, Extremist Judges Win Seats On U.S. Courts

Church & State, Jul/Aug 2005

Two federal court nominees who have criticized church-state separation were confirmed for lifetime seats on the federal appeals courts in June.

The Senate voted 56-43 June 7 to approve the nomination of Janice Rogers Brown to the U.S. Court of Appeals for the District of Columbia. Americans United had urged senators to reject Brown's nomination, citing the former California Supreme Court justice's contempt for church-state separation.

In an April 20 letter to senators, Lynn cited a speech Brown gave at Pepperdine University titled "Beyond the Abyss: Restoring Religion on the Public Square." In that speech, Brown argued against the federal court precedent that says the states are bound to uphold fundamental rights protected in the Constitution and that the Supreme Court has "relied on a rather uninformative metaphor of the 'wall of separation of church and state.'"

In April before a Catholic churchsponsored breakfast for judges and lawyers, Brown maintained that the nation was in a "war" over values of Civil War proportions.

"It's not a shooting war, but it is a war...," she claimed. "These are perilous times for people of faith, not in the sense that we are going to lose our lives, but in the sense that it will cost you something if you are a person of faith who stands up for what you believe in and say those things out loud."

The next day, the Senate voted 53-45 to approve former Alabama attorney general William Pryor for the 11th U.S. Circuit Court of Appeals.

Americans United had urged the Senate to reject Pryor's nomination, noting his long track record of attacking the First Amendment principle of churchstate separation.

Americans United detailed Pryor's fervid support of former Alabama Supreme Court Chief Justice Roy Moore's battle to keep an enormous Ten Commandments monument housed within the state's Judicial Building. The group also documented numerous speeches and interviews by Pryor that reveal his record of consistent opposition to the separation of church and state and religious pluralism.

At a rally in 1997 for Moore, Pryor told a gathering of thousands that God had chosen Christians "to save our country and save our courts." As attorney general, Pryor took the unusual step of appointing three Religious Right attorneys to represent Moore in his federal court fight in support of the 2.5-ton Commandments monument.

In court, those attorneys argued that the Decalogue display was not law and therefore could not violate the First Amendment's command to refrain from creating laws "respecting an establishment of religion." They also proclaimed that public schools could teach that America acts under the sovereignty of the Judeo-Christian God without breaching the wall of separation.

The 11th Circuit, however, upheld a U.S. district judge's order that the monument did in fact violate the First Amendment and must be removed from public display.

Senate Democrats had used filibuster rules to block votes on Brown and Pryor. (Under the filibuster, 60 votes are required to bring a nominee to a vote.) In May, however, the Senate's Republican majority threatened to change the filibuster rules. At the last minute, a compromise was reached. Democrats agreed to allow votes on several judges, including Brown and Pryor, to go forward, and Republicans agreed to keep the filibuster rules intact.

Americans United Executive Director Barry W. Lynn criticized the deal, saying it continues to permit President George W. Bush to stack the judiciary with extreme nominees.