HRC Team Supreme Blog

Party Crasher

2006-01-30T12:56:00.000-05:00

This morning we learned that Senator Lincoln Chafee (R-RI) had become the first, and possibly the only, member of his party to vote against the nomination of Samuel Alito to the Supreme Court.

If we still need to ask why, Senator Chafee made it clear by quoting from Roe:

"These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."

Sounds good, doesn’t it? So good, in fact, and so basic to our understanding of our Constitution, that Justice Kennedy quoted it in Lawrence, the case that invalidated sodomy laws and affirmed the personal dignity of millions of GLBT people.

So the question is not why Senator Chafee announced his intention to vote against Judge Alito, but why so many of his colleagues have not done so. Moderates should stand by the principle that our Constitution—our great national promise to ourselves—is an expansive document. Conservatives should be deeply troubled by the idea of a government so large that it can invade our bedrooms and conduct surveillance of peaceful, law-abiding citizens without a warrant.

Senator Chafee proved that fairness knows no party and that a senator is not a rubber stamp. Who will join him? Stay tuned.

Outside the Circle

2006-01-26T16:44:00.000-05:00

For many of us, after even a cursory review of his record, it was clear that Judge Alito would shift the balance of the Supreme Court in a dangerous direction. Our thorough review of his record and the hearings eliminated any doubt. Judge Alito is a major threat to the rights of GLBT Americans.

The challenge has been to communicate to all fair minded Americans about the significance of the Alito battle and to engage them in this fight. Today’s New York Times editorial emphasized the importance of defeating Alito: “…portraying the Alito nomination as just another volley in the culture wars vastly underestimates its significance. The judge's record strongly suggests that he is an eager lieutenant in the ranks of the conservative theorists who ignore our system of checks and balances, elevating the presidency over everything else.”

Judge Alito would tilt the court so far to the right that it will start to resemble a circle. An ever narrowing circle with fewer and few Americans on the inside and more and more left out. Inside the circle will be groups like the Family Research Council and American Family Association, who have hailed the Alito nomination. Fair minded Americans will be on the outside of that supreme circle, not even bothering to look in for justice.

Alito Fails the Justice Test

2006-01-24T17:37:00.000-05:00

The hearings have been held. The documents have all been reviewed. The questions have been asked. Now it is time for our Senators to carry out their Constitutional responsibility of advise and consent.

As Senator Ted Kennedy (D-MA) and others have pointed out, no one is entitled to a seat on the Supreme Court of the United States. It must be earned. Judge Sam Alito, Jr. has not proven his case. The Senate should withhold their consent.

It is impossible for us to conclude that Judge Alito will bring a fair and impartial view of the law and Constitution to bear in his consideration of cases on the Supreme Court. His exceedingly narrow view of the right to privacy and liberty, as evidenced in his judicial and executive branch record, gives every indication that he will shift the balance of the court away from protecting the civil rights and liberties of GLBT Americans. His non-responsive answers to questions posed by the Judiciary Committee provide absolutely no reassurance that his previously expressed, out of the mainstream views have changed.

If his record, philosophy and unresponsiveness to committee questions were not troubling enough, those who oppose GLBT equality continue their love affair with Alito. The rights of gay, lesbian, bisexual and transgender Americans are squarely in the cross hairs of extreme right wing activists. Their buddy sitting in judgment of our rights is just too scary to contemplate.

Yet contemplate we must, lest we face that reality.

Eight Senators on the Judiciary Committee stood up today to defend our rights and voted against confirmation. It is now up to every Senator to do everything possible to keep Alito off the Supreme Court. The stakes couldn’t be higher for those of us who believe in full equality.

Questions, Yes; Answers, Not So Much

2006-01-12T17:06:00.000-05:00

Just when it seemed like Judge Alito would slip by without being asked about GLBT issues, my home state Senator Russ Feingold (D-WI) jumped into the fray.

Of course, the fact that Alito was asked the questions does not mean that he gave informative or satisfactory answers. We thought Justice John Roberts was good at dodging committee questions, but while not as smooth as Roberts, Alito was at least as good at obfuscation. I doubt anyone who examines the transcript of all three days of committee questions can find more than a handful of questions in which Alito expressed his personal or legal opinion.

Senator Feingold first asked whether Congress has the power to enact laws like the proposed Employment Non-Discrimination Act to protect GLBT Americans. Alito’s answer was one of the more concrete he’s given all week, although he left himself plenty of wiggle room: “I can't think of a reason why Congress would not have that power, but I would have to be presented with the arguments.”

Feingold also asked Alito about the Saxe case, in which Alito struck down a school district’s harassment policy, and for which he received the Family Research Council’s “Golden Gavel” award. Feingold stated that Family Research Council is an anti-gay group. It was refreshing to see a United States Senator call it like he sees it—there can be little doubt that FRC does not protect families, as it claims, but spreads hate toward the GLBT community.

If only Alito had been as candid. He mischaracterized the harassment policy at issue. He described it as prohibiting nearly any speech, when in fact it only addressed severe, pervasive harassment that created a hostile environment or interfered with a student’s education.

Finally, Feingold asked whether Congress could put conditions on use of federal funds that require a school district to adopt an anti-harassment policy. Alito’s answer seems to indicate it would be okay, but he was not at all definitive.

These were exactly the right questions. It’s just too bad that Alito wouldn’t provide any real answers.

Now that the questioning is over, the questions remain. Judge Alito says assess him based on his record as a judge over the last 15 years. It’s that very record that raises serious questions for GLBT Americans.

Judge Alito could have used his testimony to demonstrate that he was a fair-minded judge who understands the impact of the law on everyday Americans. He didn’t. He could have used his testimony to commit to supporting the extensive jurisprudence supporting the right to privacy. He didn’t. None of our pre-hearing doubts have been assuaged.

How disappointing. And scary.

This CAPs everything: Alito’s Amnesia about Anti-Gay Group

2006-01-11T17:14:00.000-05:00

Some of the more fiery moments of today’s hearings surrounded Judge Alito’s membership in Concerned Alumni of Princeton ("CAP"), a group that had a record of hostility to including women and minorities at Princeton, and whose magazine, the Prospect, had published extreme anti-gay statements.

Senator Kennedy called Alito out on this, making note in particular of the anti-gay statements. Here’s an example of their exchange:

KENNEDY: The June '84 edition of Prospect magazine contains a short article on AIDS. I know that we've come a long way since then in our understanding of the disease, but even for that time the insensitivity of statements in this article are breathtaking.

It announces that a team of doctors has found the AIDS virus in the rhesus monkeys was similar to the virus occurring in human beings.

KENNEDY: And the article then goes on with this terrible statement: "Now that the scientists must find humans, or rather homosexuals, to submit themselves to experimental treatment. Perhaps Princeton's Gay Alliance may want to hold an election."

You didn't read that article?

ALITO: I feel confident that I didn't, Senator, because I would not have anything to do with statements of that nature.

Why should we believe Alito’s attempt to distance himself? CAP was the subject of very public controversy through the 70s and 80s. Yet just one year after this outrageous article was written, Alito listed CAP as a conservative credential in a job application. Is it really plausible that Alito maintained a membership but didn’t read the magazine? That he knew enough about CAP to think it impressed the Reagan Administration but not enough to be aware of its anti-gay stances? That he didn’t hear of the controversies surrounding CAP, such as that now-senator Bill Frist withdrew because of its radical stances?

From the right wing’s elation over Alito, to Senator Sessions and Brownback’s statements about "redefining marriage," we’ve seen some ridiculous stuff today.

But this caps everything.

Under The Lights

2006-01-10T18:00:00.000-05:00

Click, click, click. The sound of reporters typing away at their laptops. That was the first thing I noticed, as I sat today in the cavernous Senate hearing room for the second day of hearings on the nomination of Judge Alito to the Supreme Court. Then came the other clicks—from the cameras of the photojournalists as Alito and the Senators took their seats.

Aside from the reporters, the cameras, and the klieg lights, observing the hearing first hand is remarkably similar to being at home or at the office. It’s a big room, with rows of tables for reporters between the audience and the dais. Alito’s balding pate is vaguely visible in the distance. The Senators are recognizable from their voices and their seating arrangement far more than actual visual recognition.

Fortunately, the television monitor is just a few feet away so the audience can see what’s going on.

In the few hours I was there this morning, there were no major revelations. For the most part, Senators did ask substantive questions, rather than pontificating. Listening carefully to Alito’s articulation of the legal principle of stare decisis (the principal that the previous decisions are to be followed by the courts) in regard to the legal precedents underlying Roe v. Wade and other privacy cases, his language is nearly identical to Justice Roberts’ in his confirmation hearings. I suppose the White House is following the principle that if it worked so well once, it will work well again.

Act One: Setting the Scene

2006-01-09T18:52:00.000-05:00

There was not much news made in the first day of the Alito hearings. While the opening statements were not quite Kabuki theater, the Senators and Judge Alito all knew their roles and followed the script. After all, the first day of hearings is always about posturing rather than substance.

Each of the Democratic Senators raised concerns about Judge Alito’s record as a federal appeals court judge, as a government lawyer working for the Reagan Administration in the 1980s, and his publicly stated beliefs. Some questioned his views of executive power, particularly in light of the National Security Agency warrantless spying on American citizens. Some contrasted Alito’s expansive view of federal executive power with concerns about his decisions that indicate a limited view of Congressional power. The upcoming questions on this will be crucial since the power to enact employment non-discrimination legislation to protect the GLBT community is dependent on the authority of Congress.

Republicans focused on Alito’s qualifications for the job. With the many mentions of the American Bar Association’s rating, you’d think Senators forgot about the Bush Administration’s attempts to sideline the ABA.

Of course, as we moved down the Republican seniority list, social issues jumped to the top of the agenda. Senator John Cornyn (R-TX) blamed “liberal interest groups” who want to “impose their liberal agenda on the American people…they want judges who will find traditional marriage limited to one man and one woman unconstitutional.”

Senator Tom Coburn (R-OK) focused almost exclusively on overturning the Roe v. Wade decision, arguing that the hearings were really about whether we allow abortion to be legal in the United States. He did manage to throw in a line about legal sodomy too.

Following introductory remarks from Senator Lautenberg and former Governor and EPA Administrator Whitman, which consisted of paeans to New Jersey, Judge Alito got his chance. He wants you to know that he’s a humble guy, from a humble background, from humble New Jersey. He went to Princeton and Yale Law School, but he’s not elitist.

It’s a "just-your-average-guy" kind of image he's attempting to get across, but I wonder how many times he rehearsed?

Justice Sunday Three and the Faith-Based Initiative: The Best Justice That Money Can Buy

2006-01-09T10:49:00.000-05:00

Here we go again. The hearings on nominee Samuel Alito are set to begin on today. Last night, anti-gay and anti-choice activists gathered in Philadelphia for "Justice Sunday III: Proclaim Liberty Throughout the Land." The lineup included the usual suspects—James Dobson, Tony Perkins of Focus on the Family, Pennsylvania Senator Rick Santorum, and Jerry Falwell.

New additions to the evening’s programs included Philadelphia-based pastor Herb Lusk, a partisan activist whose church has received more than $1 million from the Bush Administration’s "Faith-Based Initiative." What a coincidence that he would agree to be on the program.

In fact, Reverend Lusk made no secret of the fact that his participating in Justice Sunday has nothing to do with Alito’s merit as a potential justice and a lot to do with rolling back GLBT rights, admitting to the New York Times that "I don't know enough about him to say I actually think he's the right man to do the job … I'm saying I trust a friend of mine [President Bush] who promised me that he would appoint people to the justice system that would be attentive to the needs I care about." According to the times, these needs stopping marriage equality and breaking down the wall between church and state.

Speakers at previous "Justice Sunday" events made clear that “activist judges” meant judges who rule in favor of GLBT equality. We expect this event to be no different.

By now we’re used to shameless displays of partisanship disguised as religion, and the anti-gay baggage that comes with it. Justice Sunday III takes the cake, though, because on top of all that, it entangles government favors with advocacy about our most independent branch of government.

Real justice can’t be bought. We hope that the United States Senate understands that and does its duty to disregard the anti-gay hysteria that Justice Sunday III is likely to dish out.

Will the Real Judge Alito Please Stand Up

2005-12-19T17:19:00.000-05:00

The more we learn about Sam Alito, the murkier his image becomes. Is he the true movement conservative that right wing activists hailed in days after his selection by President Bush? Does he have an agenda to reshape our courts and our country based on narrow constitutional principles?

His supporters thought so, and our careful and thorough examination of his record led us to the conclusion that he would at best undermine and at worst totally reverse all the progress that lesbian, gay, bisexual and transgender Americans have made over the past few decades.

Yet, many observers are pointing out that Alito is systematically distancing himself from many of the more controversial pillars of his resume and record. The anti-gay and co-education Concerned Alumni of Princeton? Alito says he doesn’t remember being a member even though he put it on his job application to work at the Justice Department.

On that same job application, Alito wrote that “the Constitution does not guarantee the right to an abortion.” When this became public, according to media reports, Senator Dianne Feinstein (D-CA) asked him about it and he said it should not be used to represent his views.

Interestingly, it’s not liberal Bush opponents that are most loudly objecting to Alito’s obfuscation on his conservative record. Sunday’s Washington Post featured an op-ed from conservative legal activist and former Reagan Justice Department official Bruce Fein. Entitled “Don't Run From the Truth: Why Alito Shouldn't Deny His Real Convictions,” in the piece Fein says that:

Samuel Alito Jr. is similarly insisting that he served in the Reagan administration as an ambitious apparatchik uncommitted to conservative principles. According to senators whose statements have been denied by neither the White House nor the nominee, Alito has distanced himself from his own writings assailing Roe and a cluster of dogmas dear to Democrats -- for example, racial preferences and welfare rights. Those writings, Alito is now saying, were crafted to curry favor with his superiors but did not reflect the authentic Alito.

While Fein is not someone with whom we often agree on policy, it is difficult to reject his conclusion that:

The explanations offered by Roberts and Alito, tacitly denying their Reaganite heritage, are fatuous on their face, akin to Thomas Jefferson's disavowing the Declaration of Independence to win a seat on the British Privy Council, or Justice Abe Fortas's disputing that he was a New Dealer despite having raced to serve under President Franklin D. Roosevelt.

Let’s hope that the Senate Judiciary Committee Members are able to lift the veil on the real Sam Alito.

Concerns About Alito

2005-12-07T16:00:00.000-05:00

The universal praise for the nomination of Judge Alito by the far right wing groups who dragged Harriet Miers through the wringer was worrisome enough. Unfortunately, the deeper you examine Alito’s record, the more you find that may justify their glee.

For instance, in a 1985 job application at the U.S. Department of Justice, Alito indicated that he was a member of the Concerned Alumni of Princeton (CAP). Just what concerned CAP so much? They were formed to oppose Princeton going coed. When that effort failed, their concerns expanded to new groups.

Just the year before Alito’s job application, the group complained that "[h]ere at Princeton homosexuals are on the rampage." In 1983, CAP’s publication—Prospect—noted that "[p]eople nowadays just don't seem to know their place...Everywhere one turns blacks and hispanics are demanding jobs simply because they're black and hispanic, the physically handicapped are trying to gain equal representation in professional sports, and homosexuals are demanding that government vouchsafe them the right to bear children." Alito apparently felt this was the kind of group a Justice Department lawyer could be proud to be a member of.

Every American should be concerned about Alito’s membership in Concerned Alumni of Princeton and his failure to repudiate these positions.

Alito’s lengthy record of decisions paints a clear picture of a judge with an unusually narrow view of the fundamental legal principles that underlay our civil rights protections and basic liberties. For example, he was the only dissenter in a 12-1 decision that held "[o]nly in extreme circumstances is it proper to invoke substantive due process." Substantive due process is a lynchpin in civil rights claims and a critical legal concept underlying our right to privacy. The major cases expanding our rights to liberty and autonomy all build upon this line of reasoning. Few legal principles are so central and few legal scholars take the fringe view that Alito does.

A "FAIR" Judiciary? That's what we deserve.

2005-12-06T09:55:00.000-05:00

As snow begins to blanket Washington, DC, the city feels quiet and peaceful. But make no mistake—GLBT rights advocates will be navigating a minefield Tuesday as they present their oral arguments before the Supreme Court in FAIR v. Rumsfeld. This case challenges the Solomon Amendment, which denies federal funding to any university that does not allow military recruiters on campus. Because the military’s "Don’t Ask, Don’t Tell" policy discriminates against GLBT people, allowing these recruiters to use their facilities forces schools to violate their own anti-discrimination policies.

Nobody likes "Don’t Ask, Don’t Tell." Turns out that most Americans don’t care whether the soldier who captures Osama Bin Laden is gay. And they really don’t want to hear that their sister has not been able to come home from Iraq because the soldier who was supposed to replace her was kicked out for being gay.

Why does the military persist in excluding gay and lesbian patriots when our military needs them most? It certainly isn’t about military readiness—our coalition allies have openly-gay soldiers.

So basically the Solomon Amendment is a big bully in the classroom, telling the other kids what to do, even if it’s wrong.

And that’s what FAIR is about—it’s about being able to say "this is wrong, and we won’t be part of it."

The Supreme Court will have the final say in this, and many other important cases. Chief Justice John Roberts will preside over this important case. And on January 9, hearings for swing-voter Sandra Day O’Connor's replacement will begin. The nominee, Judge Samuel Alito, looks like trouble. With so much at stake, it’s important to ensure that cases like FAIR get decided by fair-minded justices.

Dreaming of a right-wing Christmas

2005-11-01T16:27:00.000-05:00

Because her greeting cards to the President constituted the bulk of Harriet Miers' official record, I think a card to her at this point is appropriate.

Harriet, we barely knew ye. No hearings, no documents, just a few conference calls with James Dobson and a dizzying fracas of right wing outrage will be your legacy. We know that you were credited with vetting judicial nominees–do not despair that the process did not work for you.

Love, everybody but the Extreme Right

Miers dropped out, and she did so by employing a pre-determined script. A week before her withdrawal, conservative columnist Charles Krauthammer came up with a graceful exit strategy: blame the nomination’s failure on the White House's inability to release Miers' documents without compromising executive privilege. Wow, I bet that’s something the White House never even thought of before choosing Miers! Remarkably enough. Miers and the White House followed the script to the letter.

Scarcely three days after Miers made her graceful exit, the President announced that Samuel Alito would be his next pick. Since Miers was originally in charge of vetting nominees, one has to wonder who vetted him.

By all accounts, it was the right wing–the same anti-gay groups pushing the so-called Marriage Protection Amendment and fighting basic protections for GLBT people.

A very small segment of our electorate feels that they were promised the ultimate gift from this President: a justice who would vote with Scalia and Thomas to roll back reproductive rights and stop GLBT rights in their tracks. This same group was displeased with Miers, and clearly felt entitled to control the nominations process. As of today, they seem to think that they’ve pulled it off.

Third Circuit Judge Samuel Alito, whom the President nominated today, was at the top of their wish lists. It’s not a coincidence, then, that he got the nod.

In fact, they’ve already taken credit! Matt Lewis, of the Leadership Institute and GOPAC, wrote on his Human Events blog that "[Alito’s] very nomination proves that when conservatives become active, you and I can make a difference. Blogs, letters to the editor, and calls to yourCongressman . . . can change history. Conservatives have arrived at a point where we can flex our muscles – not just in campaigns – but also during public policy fights. It’s been a long time coming. Now, let’s fight."

The American Center for Law and Justice—the legal arm of Pat Robertson’s anti-gay empire, called Alito’s nomination the fulfillment of a promise: "President Bush promised that he would nominate Justices in the mold of Justices Scalia and Thomas. In choosing Judge Alito for the high court, President Bush has done just that."

And of course the Concerned Women for America—who opposed Miers nomination—announced that Alito had been one of their top choices right from the beginning.

The Family Research Council proclaimed that Alito is "a promise kept."

So, with research occupying the next few weeks, and hearings sure to stretch into the holidays, these anti-gay groups seem to be looking forward to a Right-Wing Christmas.

What are you wishing for in a Supreme Court justice? Let your senators know.

Extremists Show True Colors on Miers Gay Questionnaire Issue

2005-10-06T09:32:00.000-04:00

Following President Bush's nomination of Harriet Miers to the Supreme Court, the revelation of a questionnaire on gay issues she had filled out 16 years ago sparked controversy among the far right. She wasn't seeking the endorsement of the gay group, nor was she in favor of repealing the state's sodomy law, but the mere fact that she met with gay voters sent extremists on a rampage.

"I have a concern that Miss Miers was helping legitimize the drive of homosexual organizations for power and influence over public policies," said Tony Perkins, president of the Family Research Council in a statement Tuesday.

"Bush's pro-Sodomite nominee" is what the right-leaning website covenantnews.com labeled her, according to the Chicago Tribune.

While her meeting showed openness and offers some hope that Miers might have some fair-minded inclinations, Miers wasn't even seeking the endorsement of the gay political group.
In fact, she supported laws that criminalized private bedroom behavior and wouldn't say she supported a non-discrimination law for gays in the workplace. Miers only acknowledged support for AIDS funding during some of darkest days of the epidemic in America.

Cathie Adams, president of the Texas Eagle Forum told the Washington Post "For goodness' sake, why elevate AIDS over cancer? She shouldn't have filled out that questionnaire at all."

While we still have a lot more to learn about Miers, the reaction from the far right-wing to this news so clearly reveals the depth of their opposition to basic decency toward GLBT Americans.

Filling in the Blanks

2005-10-05T12:27:00.000-04:00

With so little background currently available about her views and recognizing that little else will be released, Americans of all political and ideological stripes are clamoring for just a glimpse of her views or information on her background that makes her qualified for a lifetime appointment to the Supreme Court. It is no wonder, then, that the media has been so intrigued by a candidate questionnaire that Ms. Miers completed for a lesbian and gay organization during her successful 1989 run for Dallas City Council.

Many in the gay, lesbian, bisexual and transgender community saw her willingness to appear before a gay and lesbian audience in Dallas in 1989 as a small glimmer of hope that Miers is not as intolerant as the Right Wing wants a justice to be. While her answers indicated that she supported the Texas sodomy law (which was later overturned by the Supreme Court with Sandra Day O'Connor's vote) and didn't support an ordinance to ban discrimination based on sexual orientation, we were hopeful that she was open to equality for the gay and lesbian community. Was she?

White House surrogates fell over each other to assure their base that she was not. Amazingly, the simple suggestion that Miers might be slightly sympathetic to the gay and lesbian community produced a ferocious backlash from conservative "validators". James Dobson's group, Focus on the Family, said that they had no problem with her answers on the survey. Focus on the Family has been a longtime foe of basic civil rights for the GLBT community – including workplace protections and hate crimes laws.

How was Focus on the Family so quick to judge her answers and validate her bona fide conservative credentials? One must look back to this past weekend... even before her nomination was announced to the Senate and to the American people. The NY Times reported that Karl Rove called James Dobson, head of Focus on the Family. In welcoming the Miers nomination that came as a shock to many in the conservative corner, Dobson said he knew things that he wasn't a liberty to talk about. Huh? Why is James Dobson the holder of information that nobody else , including those United States Senators who are going to vote on this nomination, knows? http://www.nytimes.com/2005/10/04/politics/politicsspecial1/04conserv.html

Up Next? Ms. Miers..

2005-10-03T09:08:00.000-04:00

The President has just announced his pick to fill the seat of Sandra Day O'Connor, Harriet Miers. Other than the biographical information readily available on the web, we know very little about Ms. Miers at this point. And we know next to nothing about her views on important legal issues that impact the gay, lesbian, bisexual and transgender community.

She has no judicial experience, although many justices -- including Chief Justice Earl Warren -- had no judicial experince. She is a Bush loyalist. She is from Texas. Some have expressed surprise that in the press conference announcing her nomination, the president stated that Miers was on the board of an organization called Exodus Ministries. This is not the infamous ex-gay group, but is a Texas-based organization that describes itself as "a non-denominational Christian organization established to assist ex-offenders and their families become productive members of society by meeting both their spiritual and physical needs." http://www.exodusministriesinc.com/objective.htm

Since very little is known, it is up to the Senate to carefully examine her record and her views. Given the importance of the seat she has been nominated to fill, they owe it to the nation.

The promises he keeps

2005-09-23T10:27:00.000-04:00

George W. Bush promised to protect the country, decrease the likelihood of terrorist attacks, bolster national defense, unite a divided nation and leave no child behind. Then he devoted himself to 'protecting' the institution of marriage, and appointing judges like Thomas and Scalia.

Unfortunately, it seems President Bush makes two kinds of promises to two kinds of people. Bush the Campaigner made the widely incompatible promises necessary to energize his base and to "swing" the very different group of voters he needed to win. Bush the Second-Term President has kept only one kind of promise and in response to the Roberts nomination we’ve – predictably – seen only one kind of victory dance. While the rest of the country becomes increasingly disillusioned by the sitting president, it’s the anti-gay, anti-choice, anti-civil rights, (anti-comprehensive sex-ed, anti-sponge bob …) victory march we see every day.

What we'd hoped from these hearings, was accountability. It's simply too difficult to accept the argument that Judge Roberts is an intelligent adult when he’s racking up credentials, but a powerless low-level drone when it comes to his less popular actions. On matters of personal opinion he says he doesn't have them or won’t tell and claims with a straight face that we can draw no conclusions based on his years in the Reagan and Bush I Administrations, private practice and the DC Circuit. It'd be laughable if the stakes weren't so high. Even George W. Bush recently took responsibility for the first time in his presidency, declaring that he’d fallen short on his most important campaign promise.

In the end, there will be accountability. If confirmed, John G. Roberts will likely serve for a generation. Bush will be accountable for the man he nominated. He'll be accountable to the pro-choice and GLBT Bush supporters who decided that national security should precede their rights, and who may not feel so safe these days. If it votes to confirm, the Senate will be accountable for failing to demand a demonstrated commitment to justice. HRC recognizes our own accountability to the people for whom we advocate and the rights we hope to achieve. As we often say, HRC envisions a world where GLBT individuals can be equal, open, and safe at home, at work and in the community. Whether we win or lose individual battles, we advocate for this world every day and at such an important juncture, we could not compromise.

One last point: whatever the result, the Roberts hearings were a spotlight over the Senate and the Judiciary and HRC worked to ensure that GLBT issues were part of this national discussion. We were pleased that public officials repeatedly framed our issues as civil rights matters important to all Americans; we were unsurprised by criticisms of our families and the landmark Supreme Court decision in Lawrence. Roberts didn't offer much response to either sort of comment, except to distance himself from Romer pro bono work at the very beginning of the very long hearings. At the very end, he provided a more revealing answer. When Senator Durbin (D-IL) asked if he would have agreed to represent the state of Colorado in its attempt to defend the anti-gay amendment eventually overturned by the Supreme Court, Roberts said: "Of course, I think I probably would have, Senator." So maybe John Roberts doesn’t have personal opinions, but is that really a good thing?

~By Liz Fujii and Lara Schwartz

Where's the outrage?

2005-09-14T11:27:00.000-04:00

On May 1, 2005 Pat Robertson told George Stephanopoulos that the "tyranny of oligarchy" posed by judges is "more serious than a few bearded terrorists who fly into buildings."

Fast forward to yesterday. Sen. Schumer took the beginning part of his questioning of Judge Roberts to ask him about that statement and others like it. What did Roberts have to say?

"...I think people have a right to be critical of judges, but attacks on judicial independence are not appropriate because judges – and certainly even judges with whom I disagree on the results or particular merits – they should not be attacked for their decisions. The decisions can be criticized, but attacking the judges, I think, is not appropriate."

Wouldn't it seem appropriate to offer something more than a mamby-pamby response about how we should be nice to judges and only criticize their decisions?

What if Roberts said: "You know Senator, those comments made my stomach turn. I believe in standing up for the independence and integrity of the court and comparing judges to cold-blooded killers who took the lives of thousands of innocent Americans is simply abhorrent. Pat Robertson is free to speak his mind but I think he does a disservice to the fine men and women of the judiciary with that kind of rhetoric."

Wouldn't that be refreshing? To most Americans, yes. But to Roberts' backers in the right-wing, standing up to their extremism is verboten. In fact they're full of nothing but adulation. Makes you wonder... who will Roberts stand up for on the court – ordinary Americans or extremists?

Roberts and Privacy? He's certainly private about his own views

2005-09-14T10:08:00.000-04:00

The right to privacy, or the right to be left alone, is of fundamental importance to all Americans. Given that Roberts dismissed the right to privacy in the past and that the Bush Administration has withheld documents that might provide the public with a better clue, we were glad that Senate Judiciary Committee Chairman, Arlen Specter (R-Penn.) opened today's confirmation hearings with questions about Roberts' view on privacy and, specifically, whether he would return Roe v. Wade.

Specter focused his questions on stare decisis - the principle that the Court should be reluctant to overturn its own decisions. Unfortunately, after a series of characteristically well-mannered dodges, Roberts has left HRC, the Senate, and the American public with barely any answer at all.

Instead, Roberts merely referred to the Supreme Court's 1992 decision in Planned Parenthood v. Casey. Although Casey upheld Roe's central holding that the government may not ban abortion outright, it also altered - and weakened - the rights of women as defined in Roe. Roe almost completely prevented any government intrusion into a woman's choice to seek an abortion in the first trimester. It also applied the most stringent test - strict scrutiny - to laws restricting abortion. Casey scaled back Roe by abandoning the trimester framework and applying the lenient "undue burden" standard, which upholds laws that don't place an undue burden on abortion.

More importantly for the stare decisis line of questioning, Casey also describes the method by which judges may overturn precedent. Roberts reiterated that he would follow this method, in which a justice takes into account:

the rule has proven to be intolerable simply in defying practical workability;
the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation;
related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine;
facts have so changed, or come to be seen so differently, as to have robbed the old application of justification.

He also acknowledged that the question of whether a case was wrongly decided in the first place factors into whether the Court should overturn it.

Here's what he didn't say: whether he believes that Roe (or Casey, or Lawrence) was wrongly decided. How he would apply the considerations above to those cases, or any other case.
In other words: he didn't say anything about what he, as a justice, might do to scale back our fundamental rights.

~by Lara Schwartz and Liz Fujii

Romer? What is that?

2005-09-13T14:23:00.000-04:00

Senator Hatch this morning asked John Roberts if he would describe some of the pro bono work he had done through his career and what it meant to him. As an "umpire", Judge Roberts must have loved this softball. In his answer, he listed a number of cases and public service programs, but neglected to mention—just as he had in his Senate questionnaire-- his work on the Romer case—a landmark GLBT rights case. He spoke with pride about representing an indigent criminal defendant, but not about the GLBT community. It's puzzling that Roberts refuses to talk about his work in this landmark case. He dodged an earlier question about his role from Senator Specter earlier today.

After all, his firm helped win that case before the Supreme Court ensuring the protections of the United States Constitution were enjoyed by the gay and lesbian community. Is it because the right wing, who has been pushing for Roberts confirmation before any document from his past was released, would be upset if he said he wasn't morally opposed to assisting in this case? Given their gleeful support for his nomination, it seems to me that this is why.

Roberts on Romer Work: Still No Answers

2005-09-13T10:27:00.000-04:00

In the opening round of questions, Senate Judiciary Committee Chairman Arlen Specter (R-PA) asked John Roberts about his pro bono work on behalf of the gay community in the Supreme Court case Romer v. Evans. Asked if Roberts agreed with his law partner with whom he worked on Romer, who stated that every good lawyer knows that you don't take a case with which you have a big moral problem, and his work on Romer shows that Roberts probably didn't have a big moral problem with it. Roberts answered that he was asked frequently to assist and he never turned down a request. He went on to say that lawyers do not stand in the shoes of their clients and good lawyers can argue any side of a case.

What does it all mean? That Roberts took Romer because he never turned down a request, and that he would work on a case even if he disagrees. It also means that he had a chance to say that he did it because it was the right thing to do, and that he's proud to have won. Roberts has said he's proud of his other pro bono work -- the cases he bothered to list in his Senate questionnaire. But apparently not Romer. In his own words- the work says nothing about who he is. And his answer says a lot more.

Question for Senator Cornyn

2005-09-13T07:55:00.000-04:00

During Senator Cornyn's opening remarks yesterday, after describing the historic ruling in Lawrence v. Texas which overturned a previous ruling in Bowers v. Hardwick, he asked "what changed in the intervening time? The Constitution? Clearly not. The members of the Court?"

While there are many distinct and important differences between the fight for equality for the GLBT community and those still not acheived by the African American and other racial minorities, I have my own question to ask Senator Cornyn. Senator Cornyn: What changed in the intervening time between the disasterous ruling in Plessy v. Ferguson and Brown v. Board of Education?

The fact remains that those who were opposed to the Brown decision, called that ruling "judicial activism". Sound familiar?

What many on the other side of equality fail to recognize is that the Constitution was designed to be flexible and grow with the times. The drafters intended it it. In fact, Thomas Jefforson, in talking about the Constitution remarked, "We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors."

As questions begin this morning, it is important to recognize that this debate is one that is fundamental and has been fundamental to our country since it's inception. Does the nominee believe that rights and liberties are what they were when the Constitution was written or amended or should it protect all of us, through a reasonable, fair and independent interpretation of the law? We may not know John Roberts' views but we should work hard to find out.

The Endless Fields of Indiana

2005-09-12T19:34:00.000-04:00

The first day of the Roberts hearings did not yield any big surprises. For instance, John Roberts delivered an eloquent opening statement containing nothing more provocative than a reminiscence about the "endless fields" of his native Indiana. He said very little at all about what he thinks. And that, dear readers, is a glimpse of what you can expect from this week's hearings.

His supporters and detractors, on the other hand, showed their own true colors and, by doing so, gave us a clue about what they are looking for in a justice.

Take Senator John Cornyn (R-TX), whom we know so well from his championing the discriminatory "Federal Marriage Amendment." At the Roberts hearing, Cornyn was singing the same old anti-gay song we've grown accustomed to hearing for him. For instance, he criticized the Court for overruling laws that "the people" have enacted, saying that it is too far removed from "average Americans" when it makes his decisions. He listed a number of judicial outrages in support of his claim. Among them Lawrence v. Texas, which struck his own state's criminal sodomy (along with 12 others). Cornyn probably thought he was scoring political points by claiming that Lawrence led to the Massachusetts decision recognizing marriage equality for same-sex couples.

The question is, why did Cornyn bring up Lawrence and marriage equality in the hearing on John Roberts, whose nomination he supports? Apparently Cornyn thinks that GLBT rights are on the line here – and he's not alone.

Senator Sam Brownback (R-KS) – who also wants to write discrimination against GLBT people into the Constitution – accused the Court of "inventing" constitutional rights and accused federal courts of re-defining the definition of marriage. As a particularly charming note, Brownback paid homage to Roberts' own brief arguing that Roe v. Wade be overruled, writing as Roberts did that the decisions to which he objects "find no support in the text, the structure or the history of the Constitution." Plagiarism is the highest form of flattery, so we imagine that Roberts is pleased to have been quoted by the Senator.

Senator Jeff Sessions (R-AL) also cautioned against allowing the Court to rule on the definition of marriage.

This was not an FMA hearing, but a hearing on John Roberts' nomination to the Supreme Court of the United States. So my question for those senators – who seem more likely than Roberts himself to answer – is: what does this nomination have to do with marriage? And is the appointment of John G. Roberts, Jr. to the Supreme Court consistent with your plan to exclude GLBT Americans from constitutional protection? If not, what on Earth are you talking about?

As usual, it was nearly impossible to understand what Senator Tom Coburn (R-OK) was talking about. He stated that "America is an idea; it's not competing ideologies. It's an idea that has proven tremendously successful and, when we reduce it to that of competing ideologies, we make it less than what it is." Hmmmm ... competing ideologies. Does he mean, for instance, religious pluralism and tolerance, which is written into the First Amendment? Or maybe freedom of speech and to petition the government, which are in that same pesky part of our Constitution? Does he mean ideologies that differ from his-scary to contemplate, as this is the man who has approved of the death penalty for abortion providers. And again I have to ask – what does the nomination of John G. Roberts, Jr. to the Supreme Court do to further Coburn's goal of stamping out "competing ideologies?"

On the other hand, Judiciary Committee Chairman Arlen Specter (R-PA) previewed that he will ask Judge Roberts about his views on the constitutional right to privacy. Because that right is so critical to GLBT equality, we will be paying close attention to Senator Specter's questions and to Judge Roberts' answers.

Senator Edward M. Kennedy (D-MA) was also true to form, reminding all assembled that this nomination is about civil rights, and that many people in this country – including the GLBT community – still face discrimination. He said that even "Even in this new century, some Americans are... denied hope because they are gay."

Senator Charles Schumer (D-NY) indicated that when Roberts met with him prior to the hearings, Roberts indicated that there is a right to privacy "that extends to the bedroom." For supporters of the Lawrence decision, that is good news – if it indeed reflects Roberts' legal opinion, as opposed to an accurate recital of current law. Senator Schumer said that he intends to ask Roberts what view he would take once, as a Supreme Court justice, he was no longer bound to follow settled Supreme Court precedent. We'll stay tuned for the answer to that, too.

As of today, we don't know more about John Roberts than we did before the hearings began. We know that the most anti-GLBT Senators don't want the courts to promote GLBT rights, and we know that they support Roberts' nomination. We know that at least some Senators are looking out for the community, and that HRC's advocacy on this topic is finding a voice in this important process. Mysteries still remain, however, and getting answers from this hearing could be as challenging as finding a needle in a haystack – or, more topically, in the "endless fields" of Indiana. Stay tuned.

Day One - From the Hearing Room

2005-09-12T18:19:00.000-04:00

Today, the Senate Judiciary Commitee held the first day of confirmation hearings for John Roberts. I was fortunate to be in the hearing room -- and be able to spend time with some key coaliton partners, like the leadership of the Leadership Conference on Civil Rights, the Alliance for Justice, the NAACP and others. It also provided me with the opportunity to speak with key staff of the Judiciary Committee and other key allies in the hearing room. Being there also reinforced how important this debate is for the future of gay, lesbian, bisexual and transgender equality.

While today was mostly confined to opening remarks, speeches from Senators and introductions of John Roberts and his family, little clues emerged on what the American public can expect over the next few days. Senators, in their opening remarks, talked of "judicial activism", "unenumerated rights" and the proper role of the Judiciary. These aren't abstract legal theories. They have real and true consequences for the gay community. Decisions made by John Roberts, if confirmed as chief justice, will decide whether or not the United States Constitution protects us all.

Hearings Set for Roberts Nomination

2005-09-09T11:27:00.000-04:00

After delays due to the death of Chief Justice Rehnquist, the Senate Judiciary Committee has rescheduled its hearings on Supreme Court nominee John Roberts for Monday, September 12. Senators will make their opening statements Monday afternoon and should begin their questioning of Roberts by Tuesday. These hearings are expected to last four to five days. The committee will then send its recommendation to the Senate floor for a vote. Majority Leader Bill Frist has said that he plans to finish the full Senate vote by Friday, Sept. 30, in time for Roberts to take a seat on the Court when it begins its new session on Oct. 3.

However, it is important that the hearing process be thorough and that crucial information about Roberts's record and views is made available to the American public.

Leading Democrats have promised to closely scrutinize Robert's record. The need for vigorous questioning is even more acute now that President Bush has nominated Roberts to the position of Chief Justice. The Chief Justice has several special roles that make the position even more powerful than that of an Associate Justice. For example, the Chief Justice, when voting with the majority of the Court, selects the author of the opinion, which can affect the tone and the substance of the opinion. The Chief also chairs several important committees and conferences.

HRC is pushing for thorough questioning of this 50-year-old nominee, who might lead the Court for decades to come. We are not holding our breath, however, for shocking revelations to come out of these hearings. Roberts will be well-coached and probably will not reveal much about his views during the hearings. He is unlikely to rebut the very strong evidence that he is a threat to the civil rights of GLBT Americans, but we encourage all fair-minded Americans to call upon him to prove that he will be the Chief Justice we deserve – one who will protect our constitutional rights.

HRC will keep you up to date with related developments, as well as any news about possible successors to Justice O'Connor, who has agreed to continue serving on the Court until her replacement is confirmed.

More Dangerous Than "Activist Judges?"

2005-08-24T14:51:00.000-04:00

Citing his concerns that the Venezuelan president Hugo Chavez might be harboring terrorists, Pat Robertson recently announced that the U.S. should "take him out." New updates confirm that he did not mean a dinner date.

Appalling as the notorious right-wing leader's comments were, hundreds of judges must have heaved a collective sigh of relief when Robertson shifted his anti-terrorism policy from attacking "activist judges" to foreign leaders.

After all, it was Robertson who stated - reportedly with a straight face - that "activist judges" were a greater threat to America than terrorists like those who attacked us on 9/11/2001.

Wow.

We're a little nervous, over here, that although Robertson's priorities have shifted somewhat, he's still got his hand in the judicial nominations game. After all, as People for the American Way president Ralph Neas explained in a news conference today, Pat Robertson's chief lawyer, Jay Sekulow, spent much of the past year "selling" Supreme Court nominee John G. Roberts, Jr. to the radical right.

Sekulow apparently has reassured his allies that what we've seen from Roberts's record is true - the nominee is no friend of civil rights.