Last edited: February 02, 2005

Three Bush Judicial Nominees Attacked on Gay Record

Activists criticize records of Pryor, Mosman, Holmes

Houston Voice, April 25, 2003
500 Lovett, Suite 200, Houston, Texas 77006-3942

By Lou Chibbaro Jr.

Less than one month after winning Senate confirmation for a federal appeals court judge who compared homosexuality to cockfighting and bestiality, President Bush has nominated three more judges whose views are being criticized by watchdogs as anti-gay.

One of the nominees petitioned the U.S. Supreme Court to uphold anti-gay sodomy laws in Georgia and Texas. Another said same-sex relationships could never be as legitimate as a heterosexual marriage and that a wife “is to subordinate herself to the husband.”

The third, who is expected to be formally nominated next month, is a former law clerk for the U.S. Supreme Court who lobbied behind the scenes to uphold Georgia’s anti-gay sodomy law in the landmark 1986 case of Bowers vs. Hardwick.

Officials at Alliance for Justice, a progressive watchdog group that monitors important judicial appointments, said the latest two nominees—and a third expected to be nominated next month—bring to seven the number of Bush’s federal judicial appointees who are considered to have records hostile to gay civil rights. The Senate so far has confirmed two of the seven.

The president on April 9 nominated Alabama Attorney General Bill Pryor to a seat on the U.S. Court of Appeals for the 11th Circuit, which has jurisdiction over Alabama, Georgia and Florida. In 1996, in his capacity as then deputy attorney general of Alabama, Pryor co-authored an amicus, or friend of the court, brief supporting Colorado’s anti-gay ballot initiative in the U.S. Supreme Court case of Romer vs. Evans.

The ballot measure amended the Colorado state constitution to prohibit local governments there from enacting laws protecting gays from discrimination. Shortly after the Supreme Court struck down the Colorado amendment, Pryor delivered a speech before the conservative Federalist Society calling the high court’s decision “antidemocratic and insensitive to federalism.”

Last year, Pryor successfully defended an Alabama law banning sodomy between unmarried adults in a challenge to the law in the state courts there.

A short time later, he wrote a strongly worded amicus brief declaring Alabama’s support for the Texas sodomy law in the Supreme Court case of Lawrence vs. Texas, which the court is expected to decide in June or July. The Texas sodomy law bans only same-sex sodomy. In his brief, Pryor urges the Supreme Court to uphold the Texas law on grounds that the Constitution does not protect gays from engaging in consenting, intimate sexual relations.

The Texas law “does not criminalize petitioners’ sexual orientation, which may or may not be a matter of choice,” Pryor wrote in his brief. “Rather, the Texas anti-sodomy statute criminalizes petitioner’s sexual activity, which is indisputably a matter of choice.”

Granting a constitutional right to choose one’s partner and whether or how to “connect sexually,” Pryor wrote, “must logically extend to activities like prostitution, adultery, necrophilia, bestiality, possession of child pornography, and even incest and pedophilia (if the child should credibly claim to be ‘willing’).”

The president submitted Pryor’s nomination to the Senate on April 9, eight days after the Senate confirmed Bush appeals court nominee Timothy Tymkovich, the former solicitor general of Colorado, who has compared homosexuality to cockfighting, bestiality, prostitution and suicide.

Mosman a ‘conservative ideologue’

Pryor’s nomination also comes at a time when Bush is poised to nominate Michael Mosman to the United States District Court in Oregon. Mosman is a former Supreme Court law clerk to the late Justice Lewis Powell.

According to two authoritative books on the Supreme Court, one by lesbian journalists Deb Price and Joyce Murdoch, Mosman wrote a series of strongly worded memos to Powell in 1986 urging Powell to vote to uphold the Georgia sodomy law.

In a 54 decision, the court upheld the Georgia law, enabling the court to issue a stinging opinion declaring that states have the right to arrest and imprison consenting adults who engage in sodomy in the privacy of their homes.

Powell disclosed after he retired from the court that he initially was leaning toward voting to overturn the Georgia sodomy law but changed his mind at the last minute and voted with the court’s conservative faction to uphold the law.

In their 2001 book, “Courting Justice: Gay Men and Lesbians v. The Supreme Court,” Price and Murdoch reported that Mosman, a conservative ideologue and Mormon from Idaho, warned Powell in a memo that overturning the Georgia statute could expand constitutional protections for privacy in a way that would put in jeopardy traditional definitions of marriage, family and procreation.

Bush has yet to formally submit Mosman’s name in nomination before the Senate. But Senator Ron Wyden (D-Ore.) told the Oregonian newspaper that White House officials informed him they were conducting a final background check on Mosman before the president announces him as his choice for the post of United States District Court Judge for the District of Oregon.

The final of the latest three appointees singled out by Alliance for Justice for having anti-gay records, is James Leon Holmes, whom Bush nominated earlier this year to the U.S. District Court for the Eastern District of Arkansas.

In a March 25 letter to Senators Orrin Hatch (R-Utah), chair of the Senate Judiciary Committee, and Patrick Leahy (D-Vt.), the committee’s ranking Democrat, the group said it has “grave concerns” about Holmes’ fitness for such a position.

Nan Aron, the Alliance for Justice president, stated in the letter that Holmes is a “zealous” advocate for doing away with a woman’s right to abortion and has made “extreme statements” on the issue of separation of church and state, gay rights and gender equality.

Aron pointed to a joint article Holmes wrote with his wife asserting that same-sex relationships should not be regarded as having “equal legitimacy with heterosexual marriage.” In the same article, Holmes and his wife also expressed strong opposition to the ordination of women to the Catholic priesthood and declared, “The wife is to subordinate herself to the husband, and the woman is to place herself under the authority of the man.”

“Holmes’s views on gender equality and gay rights cast into doubt his ability to provide equal justice to women and gays and lesbians who would appear before him,” Aron said in his letter.

In addition to confirming the Tymkovich nomination on April 1, the Senate on March 13 confirmed Jay Bybee to the U.S. Court of Appeals for the Ninth Circuit. Bybee has argued that gay civil rights laws amounted to government-sponsored “preferences” for homosexuals.

The nomination of two others whom the Alliance for Justice claims have anti-gay records—Jeffrey Sutton and Charles Pickering to federal appeals court seats—remain pending before the Senate.

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