Disorder
in the Courts
Bush’s Judicial Nominees Do Not Bode Well for LGBTs,
Others; HRC Terms Them ‘A Scary Lot’
Frontiers
Newsmagazine, March 14, 2003
Los Angeles, CA
By Aslan Brooke
Just when LGBT people are beginning to make some headway
in terms of fair treatment by the courts, President George W. Bush has
nominated a slate of judicial appointments, the confirmation of which, say
national gay- and civil-rights leaders, will set civil liberties back decades.
And, considering that the Republicans have control of the
Senate and the confirmation process, it is very possible that Bush’s plan to
pack the federal judiciary with right-leaning ideologues may well succeed,
according to the major civil-rights groups in the country, including the Human
Rights Campaign (HRC), the National Gay and Lesbian Task Force (NGLTF), the
National Association for the Advancement of Colored People (NAACP), the
American Civil Liberties Union (ACLU), and People for the American Way (PFAW).
“President Bush continues to nominate right-wing
extremists to the federal bench,” said Kweisi Mfume, NAACP president and
CEO, on the group’s Web site. “The NAACP must stand in firm opposition to
the confirmation of any and all nominees whose judicial record gives rise to
suspicion about their ability to render impartial judgment and fair
interpretation of federal law.”
Gay groups, too, are particularly concerned, and with
good reason, they say. As the NGLTF pointed out, “While the entire plan [of
judicial appointments] is troubling,” they specifically oppose the
nomination of Assistant Attorney General Jay Bybee to the 9th U.S. Circuit
Court of Appeals. Bybee came to the attention of the LGBT community when, in a
1997 law review article, he wrote an extremely anti-gay analysis of the
landmark case of Romer v. Evans, in which the U.S. Supreme Court struck down
Colorado’s Amendment 2 on the basis that by repealing all local civil-rights
ordinances that prohibited discrimination based on sexual orientation, and
requiring a state constitutional amendment to pass any
sexual-orientation-inclusive, civil-rights laws in the future, the Amendment
violated the Equal Protection Clause of the 14th Amendment to the U.S.
Constitution.
According to the NGLTF, Bybee’s view is that
sexual-orientation-inclusive civil-rights laws are nothing more than
government sponsored “preferences” for “homosexuals.” In the article,
Bybee offers proposed language for “an Amendment 2 that works,” so that
the state could effectively “repeal the three city ordinances that gave rise
to Amendment 2 [and] ... make it more difficult for a person in Colorado to
obtain preferences in any law based on sexual orientation.”
In a letter to the administration, with copies to the
Senate Judiciary Committee, PFAW President Ralph G. Neas blasted Bybee’s
record when he headed the Office of Legal Counsel, during which time he took
“a number of legal positions, adopted policies, and otherwise engaged in
conduct that has significant ramifications for the preservation of liberty and
of individuals’ rights and freedoms. These include, for example, the
Department’s shift in its views of the Second Amendment; the decision to
subject certain persons suspected of terrorist activities to military
tribunals; and the decision not to release records of the Energy Task Force
chaired by Vice President [Dick] Cheney. Because these matters bear so
critically on individuals’ rights and freedoms, it is important that the
[Judiciary] Committee explore Mr. Bybee’s role and position with respect to
them.”
On Feb. 12, HRC announced its opposition to the slate of
anti-gay judges, nominated by Bush. “We reject the notion that either party
has been given a mandate with regard to the federal courts and believe that
Americans want judges who are free of prejudice,” said HRC Executive
Director Elizabeth Birch. “We are alarmed that the administration has put
forth a slew of unacceptable nominees whose extreme anti-gay views threaten to
make the federal courts hostile to basic equality for GLBT Americans. We urge
the Senate to oppose these nominees and to use its role of advice and consent
to ensure that only fair-minded nominees are confirmed.”
According to HRC Political Director Winnie Stachelberg,
“Bybee’s characterization of civil-rights laws as ‘preferences’
indicates a fundamental misunderstanding of the law and an antipathy toward
laws that protect the GLBT community from discrimination.”
Statchelberg, who told Frontiers that the nominees are
“a scary lot,” noted that judicial appointees “are in a unique position
for life. If the Senate confirms judges unqualified to serve, it sends a very
troubling message to our community, and to other communities around the
country.” Stachelberg added that the full Senate vote on the nominees could
happen fast, or it could take a long time. “Debate around judges tend[s] to
be polarizing,” she said.
In addition to Bybee’s controversial stand on
Colorado’s Amendment 2 and other constitutional matters, gay-rights
activists are gravely concerned about the nomination of Timothy Tymkovich for
a seat on the 10th U.S. Circuit Court of Appeals. He, too, defended the
constitutional amendment limiting gay rights. Democratic senators on Feb. 12
questioned Tymkovich and whether he went beyond his official duties as state
solicitor general when, in a law journal article, he criticized the high court
for overturning Amendment 2. The Associated Press reported that Tymkovich
argued that his position as the state’s chief appellate lawyer required him
to defend Amendment 2. In the article, Tymkovich and two colleagues on the
Colorado attorney general’s staff argued that the ruling illustrated
“judicial histrionics” and complained that it was “merely another
example of ad hoc, activist jurisprudence without constitutional mooring.”
Tymkovich as well lumped homosexuality in with a litany
of “immoral” and dangerous behaviors, including sadomasochism,
cockfighting, bestiality, suicide, drug use and prostitution: “Our society
prohibits, and all human societies have prohibited, certain activities not
because they harm others but because they are considered, in the traditional
phrase, contra bonos mores, i.e., immoral. In American society, such
prohibitions have included, for example, sadomasochism, cockfighting,
bestiality, suicide, drug use, prostitution, and sodomy. While there may be
great diversity of view[s] on whether various of these prohibitions should
exist (though I have found few ready to abandon, in principle, all of them),
there is no doubt that, absent specific constitutional protection for the
conduct involved, the Constitution does not prohibit them simply because they
regulate morality. Amendment 2, while not primarily about moral judgment,
reflects a social statement about state and local laws benefiting homosexual
conduct.” “Tymkovich’s statements are insulting to GLBT citizens whose
lives are affected by discrimination and violence, and for whom the
even-handed enforcement of civil-rights laws is of the utmost importance,”
Stachelberg added. “Furthermore, his assertion that GLBT anti-discrimination
laws protect a type of conduct rather than a group of people is inconsistent
with medical and psychological research, and with public opinion.”
Despite his virulently anti-gay stance, the 46-year-old
lawyer and Republican activist said he fully accepted the court’s 6-3 ruling
in the case and vowed to follow the high court’s other decisions without
regard to his personal opinions. A judge, he said, “has a solemn obligation
to leave his personal views behind.” Tymkovich, backed by conservative
Colorado Republican Sens. Wayne Allard and Ben Nighthorse Campbell, told the
AP that the hearing went as expected, but he wouldn’t comment on his
chances. But alarming to gay and civil-rights advocates is the fact that none
of the Democrats who questioned Tymkovich—Sens. Edward Kennedy of
Massachusetts, Russ Feingold of Wisconsin and Charles Schumer of New
York—said they would oppose his appointment. Most congratulated him on his
nomination, and Kennedy even noted that some of his friends had urged him to
support Tymkovich.
Another problematic nomination is that of Jeffrey Sutton
to the 6th U.S. Circuit Court of Appeals. According to HRC, Sutton has been a
leader in the effort to limit congressional authority to enact laws protecting
civil and disability rights. “As the gay community is impacted by HIV/AIDS,
HRC is particularly concerned about his activism in this area, which has dealt
a critical blow to legal protections for people with disabilities. Sutton’s
work has helped close the door on people with disabilities seeking redress for
discrimination by states or state institutions,” Stachelberg said. “As a
community affected by hate violence, HRC is also very concerned about
Sutton’s views of Congress’ authority to enact legislation aimed at
curbing criminal violence, such as hate-crimes legislation.”
Sutton has argued that the federal judiciary should have
almost unfettered discretion to override Congress’ empirical findings in
support of its legislation, which would limit congressional authority to
protect individuals from violations of their rights—such as hate crimes,
according to HRC.
HRC has also opposed the nomination of Mississippi Judge
Charles Pickering to the 5th U.S. Circuit Court of Appeals because “his
career has been punctuated by racial divisiveness and anti-gay sentiments.”
In addition to the current batch of nominees, some have
already been confirmed. Last year, HRC opposed the nomination of Michael
McConnell to the 10th U.S. Circuit Court of Appeals. McConnell, who was
confirmed by the Senate in November 2002, contributed to the anti-gay brief
for the Boy Scouts in the Boy Scouts of America v. Dale case.
What most concerns activists is that the nominees will
present themselves as capable of rendering fair and impartial decisions, only
to later bring in their own agendas. As Neas said in his letter relative to
Bybee: [PFAW has] little doubt that at his confirmation hearing, Mr. Bybee
will promise to follow Supreme Court precedent, even when it conflicts with
his own interpretation of the Constitution and his jurisprudential views. But
this rote representation made by all judicial nominees cannot properly end the
inquiry. Most cases are not factual or legal clones of prior precedent; if
they were, the process of judging would be simple and predictable. In fact,
that process is complex and often requires subtle and nuanced interpretations
of precedent, statutes, and the Constitution. ... [B]ecause the Supreme Court
hears so few cases, the Courts of Appeals really are the courts of last resort
in most cases. For all these reasons, a federal appellate judge has
considerable power to impose his or her own jurisprudential views in a
particular case. Whether a judicial nominee is out of the mainstream of legal
thought or constitutional interpretation is thus of significant relevance to
whether he or she should be confirmed.”
[Home] [News] [USA]
