Outside the Beltway

PRYOR VS. MOORE

James Joyner · Tuesday, August 12, 2003 · 4 comments

Feddie of Southern Appeal has an interesting prediction:

Moore is set to announce this Thursday whether he will abide by the district court’s order. If Justice Moore indicates that he will not honor the court order, and thus mocking the rule of law, I predict Pryor will being down the hammer and publicly rebuke him.

It would be interesting although I’m not too sure. For one thing, Pryor’s job is to enforce the law of Alabama, not federal judicial pronouncements. For another, this would be hugely unpopular with his electoral base and not only kill his political future in Alabama but possibly even hurt President Bush in the Deep South. And it wouldn’t even help Pryor get confirmed to the 11th Circuit as it would be dismissed as pandering to Congressional Democrats.

Update (0935 8-13): Howard Bashman reports that the District Court judge contemplates using civil contempt measures to carry out his order:

Finally, in view of the Chief Justice’s recent reassertion that this court does not have the authority or jurisdiction to enter an injunction in this case, an argument already rejected by this court and the Eleventh Circuit, this court believes it appropriate to provide the parties with some preliminary idea of the court’s thinking as to how the court will proceed if later there is an allegation that today’s injunction has not been complied with within the time allowed. If the plaintiffs file a motion for civil contempt, the court will immediately issue a show-cause order. If, based on the show-cause-order response and the evidence presented at a hearing, there is a finding of civil contempt, the court could levy substantial fines against Chief Justice Moore in his official capacity and, thus, against the State of Alabama itself, until the monument is removed. Kentucky v. Graham, 473 U.S. 159, 166, 105 S. Ct. 3099, 3105 (1985) (“an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity”). For example, the court could levy a fine of $5,000 a day for the first week (that is, for each of the first seven days), with the amount of the fine perhaps to double at the beginning of each and every week thereafter to the extent allowed by law and with the fine amount to be paid into the court at the end of each week, until there is full compliance with the order the court enters today.

It is the initial obligation of the State of Alabama, not this court and not any federal official, to remove the monument. Because the Chief Justice accepted the monument, and has maintained it in the Alabama Judicial Building, in his capacity as a state official, it is the obligation of the State of Alabama (acting through the Chief Justice and, should he fail or be incapable of carrying out his duty under the rule of law, some other appropriate state official) to remove it. The court, at this time, does not envision a scenario in which there would be an opportunity for any physical confrontation between federal and state officials or between federal officials and anyone else. If called upon, this court intends, at this time, to achieve compliance by first exhausting the traditional civil-contempt process of levying fines.

Of course, the problem with a fine is the same as the initial problem: Who’s going to make me? Will the Bush Justice Department force compliance if Moore balks?