Last edited: January 25, 2005

Mosman Should Answer Question

The Oregonian, March 17, 2003
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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 valid question.

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 ethical restraints.

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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