Co-blogger Kevin has previously praised Slate columnist Dahlia Lithwick, a law school classmate of his. I don't have the same antipathy for her writing that some do; I find some of her columns to be quite useful, and others are at least funny. However, this column of hers, in the New York Times, makes an assertion that is either the result of utter lack of research or utter intellectual dishonesty:
Re-activist judges have increasingly adopted the view that their personal religious convictions somehow obviate the constitutional divide between church and state. President Bush's recess appointment to the 11th Circuit, Bill Pryor, expended energy as attorney general of Alabama to support Judge Roy Moore in his quest to chisel the Ten Commandments directly into the wall between church and state. Pryor is entitled to be offended by case law barring government from establishing sectarian religion. But what re-activist judges may not do is use their government office to chip away at that doctrine.
Except, as a guest on the Fladen Experience points out, Pryor did no such thing. While Pryor has indicated that he disagrees with the current Establishment Clause jurisprudence, as Attorney General of Alabama, he handled the judicial ethics charge against Justice Roy Moore when Moore refused to obey the order of the district court to remove the Ten Commandments monument:
Pryor filed the ethics charges after Moore refused to remove the monument.
Pryor, a Republican, has said he believes the Ten Commandments display was constitutional, but he said Thursday federal court orders must be obeyed.
"At the end of the day, when the courts resolve those controversies, we respect their decision," he said. "That does not mean that we always agree with their decision."
Now, it is true that Pryor initially offered to defend Moore's actions in federal court -- an offer that Moore rebuffed. But if that is what Lithwick means by the slippery phrase "expended energy," well, it makes no sense. Since Moore rebuffed Pryor, no energy was expended. Moreover, I don't believe that Lithwick seriously believes that litigants who want to seek a change in law aren't entitled to try to do so. Certainly Rule 11 of the Federal Rules of Civil Procedure, which prohibits frivolous filings, recognizes such a right (to an extent):
By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,--
(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
I don't know Alabama law, so I don't know if the Alabama Attorney General is putatively the legal counsel for Alabama judges who are sued in their official capacity. If so, I don't see how Lithwick can argue that it's improper for Pryor to have offered to perform such duty, even if it's in a cause that Lithwick disagrees with. Certainly, Moore is entitled to legal representation.
When Moore ultimately lost in the district court, Pryor did NOT defend Moore's refusal to obey the order. Pryor in fact essentially enforced the order against Moore by getting Moore sanctioned for that refusal, ultimately leading to Moore's being removed from the Alabama Supreme Court. Isn't that actually a counter-example to Lithwick's point about "re-activist" judges? Pryor demonstrated a clear understanding of the difference between his own personal view of the Constitution, versus the rule of law.
I understand that Pryor's recess appointment could be seen as a slap to the Democrats. And I understand that Democrats might be suspicious that Pryor took the actions he did only because he wanted to "pretend" to be a judicially restrained person. But until there's evidence to the contrary, Pryor's actions in the Roy Moore matter do not support Lithwick's scurrilous charge.
If this were coming from Maureen Dowd, I could understand. (It would still be outrageous.) But Lithwick should know better.
UPDATE: By the way, the really sad thing is that Lithwick didn't need to resort to attack Pryor to make her point that "conservative" judges can be just as "activist" as "liberal" ones. It's fair game to point, for example, to how the conservative judges persist in the oddly atextual interpretation of the Eleventh Amendment. It just makes it all the worse that she overreached in this case.