July 22, 2005

Groups prepare for John Roberts' Supreme Court confirmation

by Eric Resnick

Washington, D.C.--�It is important for people to understand that this Supreme Court vacancy and the next will be critical in determining how quickly gay, lesbian, bisexual and transgender people achieve equality,� said National Gay and Lesbian Task Force director Matt Foreman. �If the court is jerked to the right, it will delay marriage equality and non-discrimination protection for decades.�

Foreman�s organization, the Human Rights Campaign, and Lambda Legal are part of a coalition of GLBT and progressive organizations putting forth a response to President Bush�s July 19 nomination of John Glover Roberts Jr. to replace the retiring Sandra Day O�Connor as a justice on the U.S. Supreme Court.

Foreman said before the nominee was known that Bush�s choice would be the �ultimate test� of whether or not the president is �in the pockets� of anti-gay figures including Focus on the Family�s James Dobson and the Rev. Jerry Falwell. Both men were consulted by Bush on the nomination, according to wide reports.

Initial reaction to the nomination was swift, with conservatives crowing, right-wingers acting gleefully coy, and Senate Democrats signaling there will be no serious opposition to the nomination, nor a filibuster attempt.

Roberts, 50, is expected to serve on the high court for 25-30 years. He was a law clerk and prot�g� of Justice William Rehnquist, a staunch conservative who is now chief justice. Later, he worked in the Reagan administration, and as an assistant to then-Solicitor General Kenneth Starr.

He is a member of the Federalist Society, which urges �strict constructionist� interpretation of the constitution. Strict constructionists are unlikely to support civil rights, and say there is no constitutional right to privacy.

Currently, Roberts is a judge on the U.S. Court of Appeals for the D.C. Circuit. He was nominated to that post in 2003 by the current president Bush and was confirmed by the Senate in unanimous consent, meaning no vote was taken.

Prior to that, his 2001 nomination to that post was blocked by the Senate.

The first President Bush had nominated Roberts to the same post ten years earlier. That nomination also died in the Senate.

Since Roberts has only been a judge for two years, there is little �paper trail� from which to discern his world views and constitutional interpretations. From what exists, it appears that he will pull the Supreme Court to the right in nearly all areas.

�While we are continuing our review of Judge Roberts, we already know that we have reasons for serious concern,� said Lambda director Kevin Cathcart. �There are a number of issues that are important in determining whether a nominee will respect the rights of all Americans. Judge Roberts� track record on reproductive freedom, privacy and respect for Congress� power to enact important statutes like civil rights laws merits particular scrutiny.�

Roberts is an advocate for prayer in public schools and for a weakening of the wall between the separation of church and state. His confirmation will help ensure that Bush�s �faith based initiative,� including the provisions that use public funds to discriminate against GLBT people, will be found constitutional.

Of more concern is Roberts� belief that Roe v. Wade �was wrongly decided and should be overruled,� which he wrote in a brief while representing the first Bush administration before the Supreme Court in 1990.

In addition to legalizing abortion, Roe outlines Americans� right to reproductive and sexual privacy, which made possible two later pro-GLBT decisions: the 1997 Romer v. Evans decision against an anti-gay Colorado constitutional amendment and the 2003 Lawrence v. Texas decision striking sodomy laws.

�The delicate balance on the Supreme Court is in danger of breaking. If Roe v. Wade falls, so could equality for millions of Americans,� said HRC president Joe Solomonese.

Additionally, there is concern that a deal struck between seven Democrats and seven Republicans in May to avoid a parliamentary move to dismantle the judicial filibuster may make it more difficult for Democrats to block anti-gay nominees.

That deal allowed the confirmation of three of the most anti-gay judges ever nominated to lifetime circuit court positions immediately below the Supreme Court.

All three, William H. Pryor, who was confirmed to the Eleventh Circuit, Janice Rogers Brown, who was confirmed to the D.C. Circuit, and Priscilla Owen, who was confirmed to the Fifth Circuit, were previously filibustered by Senate Democrats based on their records, as part of the deal.

Signals from Democratic leader Senator Harry Reid of Nevada are that Democrats are ready to claim victory in having avoided the �nuclear option� regardless of the nominee�s judicial record.

Reid�s spokesperson Jim Manley refuted the claim that the GLBT community was hit hard by the confirmations of Pryor, Owen, and Brown.

�The fact is the agreement worked out,� said Manley, �the nominees were confirmed, and we�ll see what happens with the Supreme Court fight.�

�I understand the pragmatics, but it felt to me like the willingness of Senate Democrats to stand and fight was undercut,� said Foreman. �They spun the deal as if it was the outcome.�

Within moments of Roberts� nomination, Connecticut senator Joe Lieberman, the leading Democrat signatory to the May deal and member of the Judiciary Committee, said Roberts was someone he would not filibuster.

Reid told the New York Times, �The president has chosen someone with suitable legal credentials.�

The anti-gay establishment is pleased.

�Judge Roberts is widely respected for his fair judgment, intellect and integrity, all things qualifying him to serve as the next Supreme Court Justice,� said Family Research Council president Tony Perkins.

Bush said he hopes to have the nominee confirmed in time to be seated when the court returns from recess in October.

Lambda, HRC, and NGLTF will be working with other progressive and civil rights groups researching Roberts� record, and mobilizing members to encourage senators to block Roberts if they feel it is appropriate when confirmation hearings begin after the Labor Day holiday.

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