Last edited: January 03, 2005

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.”

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