Mosman Should Answer Question
Oregonian, March 17, 2003
1320 SW Broadway, Portland, OR 97201
Fax: 503-294-4193, Email: Letters@news.oregonian.com
The 67,000-strong Basic Rights Oregon, which works to
protect the civil rights of gays, lesbians and other sexual minorities, has
raised a question about the judicial philosophy of U.S. Attorney Michael
Mosman. Does he believe the Constitution grants gay adults the right to have
sex in their own homes?
Or does he believe they have no Constitutional right to
privacy? The question has arisen because Mosman, by all accounts an
outstanding legal scholar, is now a candidate for a federal judgeship. Intense
scrutiny of such candidates’ views is rare, but in Mosman’s case, there is
a public record that has caused concern. Mosman was clerking for U.S. Supreme
Court Justice Lewis Powell in 1986, when Powell supplied the swing vote in Bowers
v. Hardwick. That dubious decision, notorious among homosexuals, upheld
Georgia’s antisodomy laws.
Mosman, in memos to Justice Powell, warned that striking
down Georgia’s laws against some sexual acts between consenting adults in
their own homes could expand the constitutional concept of privacy unwisely.
The courts have applied privacy rights narrowly, he wrote, for protection of
marriage, family and procreation.
A respected biography of Powell contends that Mosman
played a significant role in shaping Powell’s thinking. In our view,
whatever influence Mosman might have had amounts to no more than a legal
thread, and is immaterial to his fitness to serve on the federal bench. What
matters are his views now.
The opinion was issued 17 years ago, after all, and many
people involved—including Justice Powell himself before his death—have
repudiated it. In a later case, even the Georgia Supreme Court struck down the
state’s antisodomy statutes as unconstitutional. People do grow and change,
and jurisprudence can be said to do the same. The question now is not
Mosman’s influence back then, but how Mosman’s thinking on constitutional
privacy rights and gay rights has evolved in the intervening years. It’s a
Mosman should answer it. It’s true that judicial
candidates, like judges, feel constrained by ethical canons that prevent them
from saying how they would rule in a future case. Open-mindedness and the
ability to set aside personal views in favor of a rigorous interpretation of
case law are prized in a judge. But we believe it’s perfectly possible for
Mosman to explain his general thinking while staying within the confines of
If he is nominated by President Bush, and confirmed,
Mosman could win a lifetime appointment to the U.S. District Court, a job that
currently pays $154,700 a year. His appointment could conceivably be the first
leap in a judicial career ending in a higher court. And that would not be a
bad outcome. He appears to be an excellent candidate.
Sen. Gordon Smith, R-Oregon, has put forward Mosman’s
name along with those of two other prospects. So Smith needs to make sure he
obtains some answers, as well. A judicial candidate’s views on privacy
rights are of more than academic interest, not only to Basic Rights Oregon,
but also to everyone else in our state.
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