Four of the nation’s top gay rights organizations have issued a joint statement of opposition to the confirmation of Judge John G. Roberts to the U.S. Supreme Court. The press release, dated August 25, was signed by the Human Rights Campaign, the National Gay and Lesbian Task Force, the National Center for Lesbian Rights, and Parents and Friends of Lesbians and Gays.
Notably absent, with the exception of the National Center for Lesbian Rights, were the legal groups. Lambda Legal Defense spokesman Mark Roy said his organization was waiting to see how Roberts fared in senate judiciary hearings, scheduled to begin Sept. 6. Lambda has come forward with 30 key questions they’d like senators to ask the candidate.
Likewise, Paul Cates of the American Civil Liberties Union Lesbian and Gay Rights Project said the ACLU does not as a rule weigh in on Supreme Court nominees, although an exception was made for Robert H. Bork in 1987. As with Lambda, the ACLU is more interested in a full exposition of Roberts’s views of the Constitution, and will watch the hearings with interest. On Tuesday, the civil libertarians sent judicial committee members a 45-page memo on Roberts, covered by a letter calling for the Senate “to fully consider his legal and judicial philosophy, his approach to decision-making, and his possible impact on the role of the court in protecting civil liberties.”
Opposition to Roberts is based on tens of thousands of pages of early memos, most of them written when the nominee was in his mid to late twenties. Now 50, Roberts worked as the special assistant to the attorney general in 1981-1982, and moved to the White House counsel’s office from 1982 to 1986. There, the young lawyer advised the Reagan administration on a myriad of legal issues, none of which directly concerned gay rights.
Yet his views on the flexibility of the Constitution, on matters of church and state, on the scope of the voting rights act, on affirmative action, and on race and on gender discrimination, betrayed a narrow conservatism. The gay rights groups now opposing his ascension to the High Court insist they’ve seen enough to make their call, without waiting for hearings.
These early writings, combined with his recent two-year record on the U.S. Court of Appeals for the D.C. Circuit, led Matt Foreman of the Task Force to call Roberts “a mortal danger to equal rights for gay people, reproductive freedom and affirmative action.”
Kate Kendell, executive director of the National Center for Lesbian Rights, said she found nothing in Roberts’s history to indicate that he would be “anything other than hostile to the claims of those…seeking to ensure that the emerging protections expressed in Romer v. Evans and Lawrence v. Texas become truly meaningful in the lives of lesbian, gay, bisexual and transgender Americans.”
As for PFLAG’s Jody Huckaby, the head of the country’s largest GLBT chapter organization said the stakes were too high to maintain a neutral stance. “We cannot sit back and allow a man with a demonstrated record of hostility towards privacy and minority rights to make decisions on our nation’s highest court that will effect this nation for generations to come.”
The group did not address the practical question of what would happen in the unlikely event that Roberts were to lose his confirmation battle. The short list of Supreme Court nominees under discussion in early July included many individuals with a clear history of anti-gay views. Roberts, by contrast, helped gay allies prepare for Supreme Court arguments in Romer v. Evans, the 1996 case that struck Colorado’s anti-gay rights amendment on Equal Protection grounds. His efforts on behalf of the GLBT cause were extended free of charge as part of his work for a Washington D.C. law firm. Yet conservatives and progressives alike have mostly dismissed his participation as inconsequential.
“We are mindful that Judge Roberts provided a few hours of pro bono help to the attorneys in Romer v. Evans,” said the gay rights groups in their statement. “Some have said that this work—which consisted mostly of playing the role of a conservative justice—demonstrates that Roberts is not personally anti-gay. This theory is not relevant to the important issue for our community: how Roberts would vote as a Supreme Court justice.”
Yet arguably, a personal ease with gays and lesbians does play into the way a judge or justice addresses a gay rights issue. Witness the discomfort of Justice Lewis Powell, who told a closeted law clerk that he’d never met a gay person, and who switched his vote at the last minute to form the 5-4 majority in Bowers v. Hardwick, upholding Georgia’s right to criminalize gay sex. And for some observers, Roberts contribution to the advocates in Romer cannot be ignored.
“If I had told you a year ago, that with a comfortable majority, George W. Bush would pick a man who worked for the gay side of the biggest gay rights case in the United States, you would have asked me what I had been smoking,” said University of Minnesota Law Professor and syndicated columnist Dale Carpenter. Carpenter urges gay rights groups to keep their powder dry for the Bush administration’s next Supreme Court nominee, who is likely to be far worse than Judge Roberts now appears.
On Tuesday, the National Archives released a newly discovered trove of documents from the Reagan Library that had been filed under a code rather than under Roberts’ name. Democratic members of the judiciary committee were distressed by the timing of this new influx of paper, and threatened to delay the hearings until they had time to review the material. Meanwhile, Democrats continue to push for the release of Roberts’s records during his stint as deputy solicitor general from 1989 to 1993. The White House has refused to release documents from this period, preferring to inundate the committee with writings that date back a quarter of a century.
- TXT Newsmagazine
