Judging the Judges
The U.S. Senate is engaged in what has become
a recurring battle over confirmation of White House judicial nominations.
The latest to occupy the hot seat is Miguel Estrada, a bright, accomplished
lawyer with a conservative background, who has been nominated to the federal
appellate court. At least four other right-of-center judicial nominees are
waiting to be confirmed.
Such battles are a relatively new feature of
American politics, and I remember when they began. In 1968, when I was
legislative assistant to Sen. Strom Thurmond (R-S.C.), President Lyndon
Johnson, fearful that his vice president, Hubert Humphrey, might not win the
upcoming presidential election, worked out a deal with Chief Justice Earl
Warren, who was nearing retirement. Warren would resign, but his resignation
would not take effect until his successor had been confirmed. Then Johnson
nominated his old buddy, sitting Justice Abe Fortas, to succeed Warren as
chief justice, and another old buddy, Texas Judge Homer Thornberry, to take
the Fortas seat.
Angered by Johnson’s ploy to keep the court
under liberal control, Thurmond and other conservatives swung into action,
attacking Fortas for everything from advising the president after becoming a
justice to favoring pornography. A projector was even set up in an
underground room at the Capitol so senators and their staffers could view
some of the films that Fortas had ruled were not obscene. (The most graphic
thing in them was a limp penis.)
As Thurmond’s aide, I drafted a barrage of
inquiries about Fortas’ views on a number of issues. Fortas respectfully
declined to answer—just as Estrada recently declined to answer similar
questions from liberal lawmakers. At the end of the day, the Fortas
nomination was blocked and Johnson’s attempt to maintain a liberal
majority on the court was foiled.
But the joy on the right was short-lived. In
1969, after Richard Nixon became president, he nominated South Carolina
conservative Clement Haynsworth to the Supreme Court. Pay back time! Aided
by an alliance of labor unions and civil rights groups, the Senate’s
Democratic majority declined to confirm Haynsworth. Then Nixon appointed
Florida conservative Harrold Carswell, who also went down in flames. (He was
later revealed to be a friend of Dorothy when he was arrested in a
Tallahassee shopping-mall men’s room after propositioning an undercover
police officer.)
Prior to Fortas and Haynsworth, the Senate
tended to approve judicial nominees almost routinely. It wasn’t proper to
inquire about their views, because judges are supposed to be impartial
adjudicators, not ideologically inclined legislators. Since then, however,
as the court has become more of a forum for a wide range of hot-button
issues—abortion, gay rights, affirmative action—lawmakers and others
from across the political spectrum have turned the Senate confirmation
process into a major campaign. Today, the trend has trickled down to lesser
judicial nominations—witness the organized opposition to Estrada,
Mississippi Judge Charles Pickering, and other Bush appointees to federal
appeals court positions.
Gay groups are very much part of the
discussion. “Oppose Bybee!... Contact your Senators now!” urges the
National Gay and Lesbian Task Force (NGLTF) in a release condemning the Bush
nomination of Jay Bybee, an assistant U.S. attorney general, to the
appellate court. “Stop the Smear Campaign Against President Bush’s
Judicial Nominees,” proclaims a Log Cabin Republican piece; “Write
Letters to the Editors Today!” (Republicans can hardly claim foul play:
They blocked one-third of President Clinton’s judicial appointments.)
The Human Rights Campaign (HRC) declined to
take a stand on Estrada. Winnie Stachelberg, HRC’s political director,
says research must show an antigay record—not just a conservative
one—before HRC will get involved. In Estrada’s case, they found nothing.
However, HRC lined up firmly against Bush nominees Pickering and Bybee, as
well as Jeffrey Sutton, a former clerk to conservative Justice Antonin
Scalia, and Timothy Tymkovich, former Colorado solicitor general. HRC cited
a Bybee law review article on Romer v. Evans, the Colorado antigay amendment
case, which contended local gay-inclusive civil rights laws constitute
preferential treatment for homosexuals. As for Sutton, HRC noted his
opposition to certain protections for those with disabilities and its
potential effect on those with HIV/AIDS. On Tymkovich, HRC cited an article
in which the conservative lawyer placed homosexuality in the same
“immoral” category as drug use, prostitution, and cockfighting. As for
Pickering, the organization noted the Mississippian’s mixed record on
civil rights, including gay-related issues.
NGLTF has eliminated its federal lobbyist
position and now concentrates on state and local affairs. Like HRC, NGLTF
took no position on Estrada. This is surprising, since NGLTF is to the left
of many gay groups and often takes stands on issues that are not strictly
gay-related. But in stating its opposition to Bybee, NGLTF did denounce the
“Bush court-packing plan” and referred to the president’s
“right-wing slate of judicial appointments.”
Judges
who make it through today’s ideological gauntlet sometimes reward their
backers in their decisions, and sometimes they answer to a higher calling.
In any case, there’s little indication that those with causes to
promote—including the important cause of gay rights—are going to leave
the battlefield any time soon. Let us hope that when the dust settles, the
federal judiciary—whoever is on it—gives the gay community a fair
hearing and the nation wise laws.
Hastings Wyman publishes Southern Political Report, a
nonpartisan biweekly political newsletter. He may be reached in care of
Letters from CAMP Rehoboth or at
HWymanSPR@aol.com.
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