For 24 out of the past 36 or so years, Republicans have controlled the White House, many would claim due to American anger over "traditional values". Yet, of the current Court (as of the 2005 session), with 7 out of 9 seats filled by Republican appointees, 4 of them have bestowed increased freedom and tolerance on gay Americans. Kennedy and O'Connor dissented in a number of cases, of course, some indefensible (O'Connor with Bowers v. Hardwick) and others that are more of a wash (Kennedy/O'Conner on Dale v. Boy Scouts of America). Overall, they have come through for the gay community when they feel that our basic human rights have been stripped away. Simple, huh?
The theocratic wing of the GOP was so focused on Roe v. Wade for so many years that not until 1996's Romer v. Evans did they begin to fear the scourge of the "gay agenda" tainting their Court. In 1992 Colorado voters narrowly passed Amendment 2, which barred any form of anti-discrimination laws against gays and nullified laws in Boulder, Denver, and Aspen. The amendment went all the way up to the Supreme Court, which overturned the verdict by a vote of 6-3. This has been hailed as the first major Supreme Court victory for the gay rights movement. It also effectively killed plans for legislation in similar states. Soon the first calls for impeachment roared from the bellies of the persecuted heterosexual community, and they have grown and grown over the past 9 years. My only question is:
A few bits from this fascinating LA Times article:
Supreme Court nominee John G. Roberts Jr. worked behind the scenes for gay rights activists, and his legal expertise helped them persuade the Supreme Court to issue a landmark 1996 ruling protecting people from discrimination because of their sexual orientation.
So he didn't argue the case, and he has never been acknowledged as a major part of this case, so he probably just sat back and did nothing, right?
Jean Dubofsky, lead lawyer for the gay rights activists and a former Colorado Supreme Court justice, said that when she came to Washington to prepare for the U.S. Supreme Court presentation, she immediately was referred to Roberts.
"Everybody said Roberts was one of the people I should talk to," Dubofsky said. "He has a better idea on how to make an effective argument to a court that is pretty conservative and hasn't been very receptive to gay rights."
She said he gave her advice in two areas that were "absolutely crucial."
"He said you have to be able to count and know where your votes are coming from. And the other was that you absolutely have to be on top of why and where and how the state court had ruled in this case," Dubofsky said.She said Roberts served on a moot court panel as she prepared for oral arguments, with Roberts taking the role of a Scalia-like justice to pepper her with tough questions.
When Dubofsky appeared before the justices, Scalia did indeed demand specific legal citations from the lower-court ruling. "I had it right there at my fingertips," she said.
"John Roberts … was just terrifically helpful in meeting with me and spending some time on the issue," she said. "He seemed to be very fair-minded and very astute."Dubofsky said Roberts helped her form the argument that the initiative violated the "equal protections" clause of the Constitution.
One can argue that Roberts was asked to help pro bono and as part of his firm's policy, he agreed. But if he were as bitterly opposed to homosexuality as Bush's ideal justice (Scalia), he probably would have refused to help; he was a very important part of the firm and I doubt they would have fired him over such a matter. One can also argue that even those who oppose homosexuality can cringe at a law which takes away all power from municipal governments. One would have a point. But again, let's go back to what President Bush's ideal justice, Scalia, said on this matter:
"Coloradans are entitled to be hostile toward homosexual conduct."
Roberts left this case out of his pro bono work. That could be due to his not arguing the case, but I wonder if the other reason is because of potential backlash. I've heard some people claim this is a ruse to make him more palatable to Democrats, but Democrats are in the minority and aren't likely to filibuster right now. The majority are reactionary Republicans. Coburn. Brownback. Santorum. Lott. Are they going to support the President and dodge this issue at Roberts' hearings? Or - after being jerked around on everything from Bolton to BRAC - are they going to try to derail or (gasp) filibuster him?
There's no reason to believe Roberts will be another Souter, or even another Kennedy. I am fully expecting him to rule with Scalia/Thomas most if not all of the time. But his extensive work against Romer suggests he at least believes that some laws against gays and lesbians go too far and gays do not deserve never-ending punishment simply because they exist. I can't wait to see how Dobson, Falwell, Robertson and the rest cover this issue. Just imagine those angry phone calls to the White House, and the perpetual fear of yet another Republican appointing yet another impeachable ingrate.
Wow. I'm still trying to get my brain around the possibility that, despite the Administration's very great efforts to ensure otherwise, John Roberts could turn out be another Souter on any issue at all, much less gay rights. And I'm still trying to decide, after reading this Los Angeles Times article (and many others), whether Roberts was just behaving as the kind of lawyer who brings all his intellectual skills to bear in every case no matter what his personal views or someone who was expressing his own deeply held beliefs.
Posted by: Meteor Blades | August 04, 2005 at 11:35
So Supreme Court Justices ought to be subject to impeachment for doing what Alberto Gonzales said the other day they had the right to do?
There's a good line of questioning.
Posted by: Kagro X | August 04, 2005 at 12:08
Well I was joking about the impeachment, but there are a lot of people out there who would impeach him over this. Phyllis Schlafly probably would, after she's done celebrating her 200th birthday.
Posted by: James | August 04, 2005 at 12:16
You may have been joking, but the NLF article you pointed to wasn't. It links to a Regent University (Pat Robertson's School for Wayward Fundies) Law Review article explicitly making the case for the same mass judicial impeachments featured at the recent "Justice Sunday" extravaganza.
But just the other day, Gonzo told everyone that Roberts, as a Supreme, wouldn't be bound by stare decisis in the same way he was as a circuit court judge. And he's right. But it also seems that's the sort of activism the NLF thinks you should be impeached for.
So which is it, fellas? The prerogative of the SCOTUS? Or grounds for impeachment?
Posted by: Kagro X | August 04, 2005 at 12:34
I think even the leaders honestly don't want to impeach anyone, they just say that to get more $$$ and adoration. But the base certainly is itching to impeach someone, so it will be interesting to see what happens if Roberts is not what they expect.
Posted by: James | August 04, 2005 at 12:52
In my experience, the people who are virulent on the issue of gays are either opportunistic politicians or people who are not quite right with themselves and/or their circumstances in some way and use anti-gay expressions to cover things they will not face about themselves, whether it is homosexual feelings or pewrsonal failure.
OTOH, it is quite believable to me that an intelligent, heterosexual, traditional conservative could not have any particular feelings about gays one way or the other, or could include gays in a kind of general tolerance and good manners towards others.
Roberts is always described as well-mannered, and he may fall into this category. He may also have or have had a gay friend or relative through whom he came to see gays as people.
Someone like that could easily lend his considerable appellate advocacy skills to help someone with an oral argument that he himself might not have made, or even one that he would have made had he been the advocate for the cause.
This is a long way around saying that it shows only that he does not have the kind of anti-gay animus that would lead him to refuse to work on that side of that case. So he probably is a pretty well-adjusted conservative man from a pretty comfortable background. I don't see him as a Souter. The best we could hope for is a Kennedy, although Kennedy reportedly learned some of his tolerance from his children, and Roberts' kids are awfully young to be making any difference at this point.
Posted by: Mimikatz | August 04, 2005 at 13:14
You're probably quite right. The law review article says DeLay has been threatening judges with impeachment since at least 1997.
It's clearly a function of what we'll start calling the WTMWK (What's the Matter with Kansas?) factor.
Posted by: Kagro X | August 04, 2005 at 13:14
One more point--I do not at all find it unbelievable that he did not list this case, as he was called in to consult and do a moot court. During my 20 plus years as a lawyer I did a fair number of appellate arguments, and was asked to do similar consultations. I don't think I could remember all the cases. And since it was pro bono, there would probably not be a specific time record, but rather some catch-all billing line. Of course maybe bring appointed to the Supreme Court would cause me to recover the memory, but if he took this part off his appellate court application, maybe it was just an oversight. Which again would mean that such a case was not such a big deal to him that it would stand out from the many other Supreme Court cases on which he no doubt also consulted.
But as Kevin Drum asks, the more interesting question is where did the reporter get this story, why was it given to him, and why was it written?
Posted by: Mimikatz | August 04, 2005 at 14:19
That "Fountain of Truth", the man who is the living embodiment of the joke in The Sopranos about the 95 pound mole (i.e., he could have had the 95 pound boil on his fat ass removed back when he was up for the Vietnam draft and no one would have noticed), has come up with The Truth About Roberts:
It's some sort of left-wing smear to mess up the Right, to bring up this story about Justice Roberts.
Watching Dobson and the rest of the Taliban get their burkas in a knot over this is fun-neeeeee.
Posted by: TCinLA | August 05, 2005 at 02:05