Judge Pryor Again - UPDATE

Updated below.

Nathan at Sollicitudo Rei Socialis has posted again on Judge William Pryor. Judge Pryor, the former Attorney General of Alabama, was nominated by President Bush for a judgeship on the 11th Circuit Court of Appeals and was filibustered by Senate Democrats. The president recess appointed him and has re-nominated him. Nathan has accused Judge Pryor of being a racist, a supporter of violence against women, a homophobe, and an "unabashed" supporter of the death penalty. He had this to write about him last week:

"Addendum to Bill Pryor's Record"

Some of you may remember that I had grave questions about the record of one of President Bush's judicial nominees. The nominee I had serious concerns about was Bill Pryor, the former attorney general of Alabama and an extremist conservative that President Bush tried to push through the Senate last year. When he was unable to do it because of a Democratic filibuster, President Bush gave him a temporary appointment to the 11th Circuit Court of Appeals. Yes, that's right, the court of appeals that several times refused to reinsert Terri Schindler-Schiavo's feeding tube. When I took note of the fact that he would be one of the deciding judges, I wrote:

What I find ironic is that the hope of saving Terri Schindler-Schiavo's life has now been placed partially in the hands of a man I neither trust nor respect, Judge William Pryor, the former attorney general of Alabama and President Bush's temporary appointment to the 11th Circuit Court of Appeals. I pray that he and the other judges on the appellate court will make the right decision. And I don't know how his making the right decision will impact my opinion of him; I guess we'll find out if he does it ("Breaking News: Judge Won't Help Terri," Sollicitudo Rei Socialis, 3/23/2005).

What I did not say then, because I knew I would be accused of partisan bitterness, was that I had strong doubts about whether or not this great bastion of the pro-life movement would act to save Terri Schindler-Schiavo. I didn't say it, but it's been on my mind ever since. What I've discovered now is that my suspicions were warranted; there was a 10-2 vote to reject the appeal to reinsert Terri's feeding tube, and Pryor was one of the ten in the majority, not one of the two dissenting opinions. Let all pro-life Catholics, all conservative Catholics, and all Republican Catholics take note: the man you thought would help your cause in the judicial system has refused to do it, and he has been complicit in the death of Terri Schindler-Schiavo.

I hope that David Schrader, especially, will take note. For those of you who don't know, David Schrader is a contributing editor of Catholics in the Public Square and the editor of Catholics for Bush, and he was one of the most vociferous defenders of Pryor when I questioned his record before. Perhaps this will cause David and all who were willing to give Pryor the benefit of the doubt to take a second look.

And when the conservatives and the Republicans begin talking about whose fault this is, when they blame it on the "liberal judiciary," when they say Democrats didn't do enough, etc., etc., ad nauseam -- readers of Sollicitudo Rei Socialis should remember that Judge Greer, the judge responsible for it all, is a conservative Republican. They should remember that many judges on the 11th Circuit Court of Appeals are Republican appointees. They should remember that seven of nine Supreme Court justices are Republican appointees. And they should remember that Judge William Pryor, the extremist who has been temporarily appointed to the 11th Circuit Court of Appeals, wasn't extreme enough to save Terri Schindler-Schiavo's life.

Here is my response to him:

I continue to stand by my defense of Judge Pryor against your still unfounded accusations. That being said, it was disturbing to read this post in which you state Judge Pryor voted with the majority of the 11th Circuit in denying the Schindler's petition for rehearing en banc. After taking a "second look", as you suggested, I found out that a majority indeed voted to deny the petition, but it is unknown which judges actually voted in the majority. Yes, Judge Tjoflat and Judge Wilson wrote dissenting opinions, but that does not mean that this was a 10-2 vote. You see, a majority--seven--is needed to grant a petition for rehearing en banc. Unfortunately, the 11th Circuit, unlike other circuits, does not make known the vote tallies. Thus, it is possible other judges also dissented, but for whatever reasons did not join in with the written dissents or write one of their own. Judges may decline to write a dissent even though they voted in favor of the petition. So, you cannot say with any certainty that Judge Pryor voted with the majority, for there is no proof he did.

I hope you inadvertently just relayed the misreporting of the MSM on this idea of a 10-2 vote. I do not believe you would purposefully mislead your readers. Nevertheless, your post was misleading. Aren't you glad you suggested I take a second look?

There have been additional comments added by both Nathan and myself since this original post and initial comments. I wanted to share them for anyone interested and to keep a record of them here at Catholics for Bush.

From Nathan:

David, I've seen the 10-2 figure from various news sources -- CNN, Fox News, MSNBC, just to name three. I seriously doubt that these sources would report and continue to report what was apparently easy for you to discover as an error. Thus, I'm inclined to believe that you are in error. They have repeatedly reported that this was a 10-2 decision.

And Nathan again:

The St. Petersburg Times reports that it was a 10-2 decision...
The San Francisco Chronicle reports that it was a 10-2 decision...
The Pittsburgh Post-Gazette reports that it was a 10-2 decision...
LifeNews.com, which is you folks' news source, reports that it was a 10-2 decision...
The Seattle Times reports that it was a 10-2 decision...
CNN reports that it was a 10-2 decision...
Newsday reports that it was a 10-2 decision...
The Miami Herald reports that it was a 10-2 decision...
The New York Post rules that it was a 10-2 decision...
The Guardian reports that it was a 10-2 decision...
MSNBC reports that it was a 10-2 decision...
ABC News reports that it was a 10-2 decision...
ZENIT reports that it was a 10-2 decision...
Fox News' Sean Hannity reports that it was a 10-2 decision, in the presence of Bob Schindler, who did not dispute it...

That's fifteen mainstream and not-so-mainstream media sources, conservative and liberal, who have cited a 10-2 decision from the 11th Circuit Court of Appeals. Why shouldn't I believe that? And since there were only two dissenting opinions, doesn't it follow that Bill Pryor HAD to have been one of the ten who ruled not to reinsert Terri's feeding tube?I think the burden of proof is clearly against him, don't you?

My next response:

Here is the actual denial from the 11th. The order reads:

The Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure; Eleventh Circuit Rule 35-5), the Suggestion of Rehearing En Banc is DENIED.

If this is the ONLY source which any of the media outlets had of the circuit's ruling, then where does one get a 10-2 ruling? Show me a document from the 11th that has "10-2" on it.

A further response from me:

I took another look and found this ABC News article. This article refers to the last decision of the 11th Circuit on 30 Mar and not the decision on 23 Mar we all are concerned with. Still, it is telling:

To be granted, the request would have needed the support of seven of the court's 12 judges. The court did not disclose the vote breakdown, but the order did say Judge William Pryor did not vote because he is recovering from surgery.

Why did they not disclose the vote breakdown? Maybe because it is common practice of the 11th not to publish vote totals?

Nathan's latest response:

David, here's the thing: I'm having trouble believing the editor of Catholics for Bush, who has a clear interest in proving that William Pryor did not vote to end Terri Schiavo's life because it would invalidate his and many others' claims about Bush's judicial nominees, over and against fifteen different news sources, conservative and liberal, including Fox News' Sean Hannity speaking to Bob Schindler -- who certainly would have known if the citing of a 10-2 decision was or was not accurate.

What you are in effect saying is that fifteen (actually, over fifteen, I stopped at fifteen) major media sources committed a serious error, and that Bob Schindler didn't know the figure of how many judges voted to end his daughter's life. Are you really making that claim, and on what basis are you, Catholic for Bush that you are, to be believed over and against fifteen media sources and Terri Schiavo's
father?

As for your report that Pryor did not vote in the second decision, you're right -- that's why the media reported that it was 9-2. But he did vote in the first decision, and his vote was included in the ten votes that helped kill Terri Schiavo. I stand by my claim in the absence of any evidence from you to the contrary, and I urge my readers to ignore your ridiculous claims in light of the fact that you have presented no evidence and also in light of the fact that you have a demonstrable bias that has severely impaired your judgment, leading you to lie not only to others but also to yourself about what clearly happened here -- Bush's judicial appointee voted to kill Terri Schiavo. And you are in denial.

And here is my latest response:

Nathan, I did not lie about this. I came upon your post with great interest and left it believing that maybe Judge Pryor was not worthy of a Catholic's support. So I took that "second look" you suggested. What I found though was that it is not known if Judge Pryor voted with the majority. I admit he may have, but we do not know. Only he and other members of the 11th Circuit know. Your claim that he did is just not true.

The multiple media reports were erroneous and I am sorry to say that Mr Schindler was mistaken, likely basing his information on the same media reports. Ask yourself what information the media and Mr Schindler used in forming this false assumption. It had to have come from the 11th Circuit court order. They misinterpreted the information in it, assuming since there were only two written dissents, that there must have been 10 votes for the denial.

In the spirit of Christian charity I have not questioned your honesty. As I have stated previously, I do not believe you purposefully misinformed your readers. But I do believe that your dogged determination to attack Judge Pryor's record led you to accept without question the idea that he was part of this majority and thus partially responsible for Terry Schiavo's death.

I have provided a link to the 11th Circuit court order which shows there is no vote tally and I briefly explained this practice. You have ignored or discounted that evidence. So I have provided some more below.

If it troubles you that a "biased" Bush supporter is making this claim then here are some non-biased folks who also are:

From Law.com, the Web's leading legal news and information network:

On Wednesday afternoon, the full 11th Circuit rejected an emergency petition by Schiavo's parents to reconsider the panel's decision. Seven judges would have had to vote for reconsideration for the court to review the claim.

Only Wilson and Judge Gerald B. Tjoflat dissented publicly from the en banc rejection. The 11th Circuit does not disclose how judges voted on en banc review questions, although judges may choose individually to make their votes known, as Tjoflat and Wilson did in their dissent.

From Orin Kerr, who is an Associate Professor of Law at George Washington University and clerked for Justice Kennedy at the SCOTUS:

Schiavo and Conservative Judge-bashing: In case some conservatives think that the recent decisions in the Schiavo case provide a good reason to engage in attacks against the judiciary, I think it's worth noting that one hundred percent of the Reagan, Bush 41, and Bush 43 nominated judges who have reviewed the Schiavo case have voted against granting the relief the plaintiffs are seeking. [UPDATE: See below] That includes strong conservative judges such as Judge Carnes (on the original panel), Chief Judge Edmondson, Judge Birch, and Judge Pryor (all of whom voted against rehearing en banc). The only judges who voted in favor of federal court relief were a Clinton appointee (Judge Wilson, on the original panel) and a Ford appointee (Judge Tjoflat, at the rehearing stage).

UPDATE: Reader Jonathan Steinsapir properly points out that we don't actually know the votes of each of the judges at the rehearing stage. While the press is reporting that the vote was 10-2, the order denying the petition for rehearing merely states that there was no majority of active judges in favor of granting rehearing and then contains two dissents from the denial of rehearing. It is possible that some judges voted in favor of rehearing but decided against writing or joining a dissent from the denial of rehearing en banc. My sense is that it's not particularly likely in a case like this, but it is certainly possible.

Kerr's argument about Conservative Judge-bashing sounds like yours, but unlike you, he notes the reality of not knowing the actual vote.

From Howard Bashman at LegalAffairs.org's blog How Appealing. LegalAffairs.org is an online magazine at "the intersection of law and life". The blog How Appealing is a blog devoted to appellate litigation. Mr Bashman is admitted to practice law in Pennsylvania, New Jersey, the Supreme Court of the United States, and the United States Courts of Appeals for the First, Third, Fourth, Fifth, Ninth, Eleventh, District of Columbia, and Federal Circuits:

BREAKING NEWS -- U.S. Court of Appeals for the Eleventh Circuit rejects Terri Schiavo's parents' request for rehearing en banc: The Associated Press reports here that the vote on the petition for rehearing en banc was 10-2 against granting rehearing. The Court's order denying rehearing en banc can be accessed here via the Eleventh Circuit's web site or here, where I have posted it as a backup.

One point from The AP's report deserves clarification. Two Eleventh Circuit judges -- Gerald Bard Tjoflat and Charles R. Wilson -- have expressly noted their dissent from the denial of rehearing en banc. Up to our other judges on the Eleventh Circuit could have voted in favor of granting rehearing en banc but then have chosen not to have their dissents noted from the denial thereof.

Is it possible that many of the 15+ media outlets you note, and Mr Schindler himself, used this erroneous AP report in coming to the false assumption that this was a 10-2 decision? I believe it is.

The editor of the blog Thus Blogged Anderson comments on Bashman's post:

UPDATE: No en banc. No vote count, just "not a majority," though Tjoflat and Wilson wrote against it. Can't tell what Pryor did. We note that Tjoflat rejects the panel's holding that All Writs Act relief isn't available where Rule 65 relief could be and was sought. Interesting if true!

From Shannen Coffin, who is admitted to practice in the US Supreme Court and US Courts of Appeals for the Second, Third, Fourth, Fifth, Sixth, Seventh, Ninth, Eleventh and District of Columbia Circuits. He is also a member of the U.S. District Court for the District of Columbia and a former Deputy Assistant Attorney General:

The Eleventh Circuit is composed of 12 judges. It takes 7 to grant a petition for rehearing en banc. Unfortunately, under 11th Circuit practice (unlike a number of other circuits), you can't tell what the final vote was. Two judges, Tjoflat and Wilson (who was the dissenter on the original panel decision this morning) wrote separate dissents, but that does not mean that this was a 10-2 vote. It's impossible to tell, but it is quite possible that other judges also dissented but, for one reason or another, did not join in the written dissents. So the vote might have been closer than it appears.

Also from Mr Coffin:

There simply is no way to know. Judges may decline to write a dissent from a denial en banc, even though they voted in favor of the petition to hear the case en banc, for any number of reasons. Perhaps they view it as futile, lacking in precedential value, etc. So the only folks who know how Bill Pryor -- or others for that matter -- voted are currently employed by the 11th Circuit.

From Byron York, who is the White House correspondent for National Review and writes a weekly column for The Hill:

In the 11th Circuit Court of Appeals decision not to hear the Schiavo case en banc, two judges out of twelve -- Tjoflat and Wilson -- wrote dissenting opinions. William Pryor, who was filibustered by Senate Democrats and then placed on the court by recess appointment, did not make any public dissent. It is not known if Pryor, who expressed his strong personal pro-life views at his Senate confirmation hearing, voted with the majority, but he made no public statement.

From the Birmingham News:

Regarding the highest-profile decision at the 11th Circuit in recent months - whether Terri Schiavo's feeding tube should be reinserted - Pryor's views are not known. He was not a member of the three-judge panel that considered the issue, and he did not write an opinion either concurring with or dissenting from the full court's decision declining to hear her parents' case.

I thought the actual 11th Circuit court order denying en banc review was enough evidence to show there was no vote count. Did you read the order? Again, it is clear there is no vote total. You ask, on what basis I make this claim. The order itself was my basis. The above references I think show this to be true. If you still believe I am wrong, then explain why the lawyers and other sources above are wrong as well? They have no "clear interest", as you claim I do, to support Judge Pryor, so why would they lie?

Below is some additional evidence of the practice of not disclosing vote totals for en banc review denials in the appeals courts. These three sources are all legal references. Two come from the committee governing appellate procedures and the other comes from a circuit court judge's dissent from the denial of en banc petition.

The first reference comes from the Advisory Committee on Rules of Appellate Procedure. This committee advises the Committee on Rules of Practice and Procedure which was established by the federal judiciary (Judicial Conference). Congress has authorized the federal judiciary "to prescribe the rules of practice, procedure, and evidence for the federal courts, subject to the ultimate legislative right of the Congress to reject, modify, or defer any of the rules." The following comes from the May 2003 committee minutes (page 10):

The Committee discussed at some length the conflicting practices of the circuits regarding the amount of information that is disclosed about votes to deny petitions for hearing or rehearing en banc. Understandably, no circuit discloses any information about votes to grant rehearing petitions.) Practices appear to range from, at the one extreme, disclosing nothing except that the petition was denied to, at the other extreme, identifying which judges voted in favor of rehearing, which voted against, which abstained, and which were disqualified. One member said that Judge A. Wallace Tashima, a member of the Standing Committee, had suggested that the Appellate Rules be amended to require courts to disclose the votes of individual judges when rehearing petitions are denied. By consensus, the committee agreed to put Judge Tashima's suggestion on the study agenda.

The second reference is also from the Advisory Committee on Rules of Appellate Procedure. It comes from the November 2003 minutes (pages 17-19). It picks up on Judge Tashima's suggestion above to require disclosing votes:

The courts of appeals follow inconsistent practices when it comes to disclosing information about the consideration of petitions for hearing and rehearing en banc. For example, some circuits always identify judges who are disqualified, while other circuits never do - or do so only when a disqualified judge requests. Similarly, if a petition is denied after a judge calls for a vote, some circuits always disclose how each judge voted, while other circuits never do - or do so only when a judge writes or joins an opinion dissenting from denial of the petition.

The Reporter reminded the Committee that Judge A. Wallace Tashima - a member of the Standing Committee - had suggested that the Committee consider amending Rule 35 to require judges to disclose how they vote on rehearing petitions. The Reporter said that he had drafted an amendment to Rule 35 that would implement Judge Tashima's suggestion. Under the draft amendment, disqualifications would have to be disclosed in every case in which a party petitioned for hearing or rehearing en banc. Votes would be disclosed only when petitions for rehearing en banc were denied. Votes would not be disclosed when rehearing petitions were granted, nor would votes be disclosed when petitions to hear a case initially en banc were either granted or denied. In these latter situations, the court would be giving further consideration to the case, raising the appearance of unfairness if votes were disclosed. Moreover, in these latter situations, judges would later cast a vote - either on the merits of the case or on a petition to rehear a panel decision en banc - that would be disclosed.

The Committee first discussed the question of disclosing votes. Every Committee member who spoke expressed opposition to the proposal. In the vast majority of cases, no vote is taken, so there is nothing to disclose to parties. In the few cases in which a vote on a rehearing petition is called for, judges cast "no" votes for such a wide variety of reasons that disclosing such votes would give the parties little useful information. And even judges who cast "yes" votes often do not want those votes disclosed for fear of needlessly embarrassing a colleague. The consensus of the Committee was that, given that the vast majority of circuits do not "involuntarily" disclose votes, and given that most Committee members think that disclosing votes would be a bad idea, and given that this issue does not directly affect practitioners, the Committee should go no further with the proposal.

The last reference is from 9th Circuit Judge Stephen Reinhardt. In this dissent he wrote from a denial of en banc review Judge Reinhardt explains how not all circuits disclose vote totals on en banc reviews:

The public is entitled to know whether an en banc hearing was denied because the court was equally divided, because a bare majority opted not to invoke the en banc process, or because the court voted overwhelmingly not to go en banc. Unfortunately, the number of signatories to a dissent from the denial of en banc review ordinarily provides little significant information. A number of judges, as a matter of principle, do not join in en banc dissents even when they have voted unsuccessfully to go en banc and agree with the content of the dissent.

If I am wrong about this practice then how does one explain all this? In 2003 there was a suggestion made to a rules committee to change practice and disclose vote totals, the drafting of an amendment to the Rule governing this practice, and subsequent opposition and dropping to the proposed change. As well, in 1999 a circuit court judge in a written opinion refers to this practice. This is real. I did not make this up. This practice occurs and it occurs in the 11th Circuit. All the above evidence confirms the fact that there were no vote totals in either the first or second 11th Circuit court orders denying the Schindlers' petition for en banc review. In the face of this evidence, I do not know how one can state with any certainty that Judge Pryor voted with the majority.