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Full court press: George W. Bush has a very clear position on what makes good judges--and it's not a willingness to advance gay equality.

By now it is apparent to most GLBT Americans that President George W. Bush will have massive power not only to appoint a new conservative Supreme Court chief justice but maybe up to four other new justices to the nation's highest court. Their conservative interpretation of the law will have a profound impact for decades to come, especially on marriage rights for same-sex couples and gay rights in the wake of the court's 2003 Lawrence v. Texas ruling, which overturned sodomy laws.

After all, at age 80, William Rehnquist is already one of the oldest and longest-serving chief justices in history. His recent diagnosis of thyroid cancer means that he almost surely will be the first justice to step down in 10 years. (As of press time he had not announced his plans.) Other justices are aging too: John Paul Stevens is in his 80s, and Ruth Bader Ginsburg and Sandra Day O'Connor are in their 70s.

Since the 2000 election, Bush has maintained a very clear position on what kind of resume that he believes makes for a good judicial candidate. He consistently declares a desire to nominate "strict constructionist" judges; that is, those who "will faithfully interpret the law, not legislate from the bench."

To gay rights groups, the terms "legislating from the bench" and "activist judges" are code for the type of decision that the Massachusetts supreme court handed down that legalized same-sex marriage in the state. Such decisions are virtually guaranteed not to come from nominees proposed by the Bush White House. The president has long professed admiration for justices Antonin Scalia and Clarence Thomas--the two most conservative judges on the high court, both of whom dissented on Lawrence v. Texas.

Before we panic, there is some small solace: "If it is only Rehnquist," says Stephen Wermiel, a law professor at American University who specializes in the Supreme Court, "that may not make much difference." Rehnquist is himself a staunch conservative, so replacing him will not tip the close balance of the court. However, "if we get to the point that President Bush is replacing Sandra Day O'Connor or John Paul Stevens--then everything is in play, including, maybe, Lawrence," Wermiel adds. Lawrence was decided based on an interpretation of privacy laws that justices like Scalia don't subscribe to.

Wermiel cites Bush's November 4 victory speech, which eventually morphed into the phrase "I've earned political capital," he says. "I take that as [a nod that] the 'moral conservative right,' if you will, is going to be influencing Supreme Court nominations. There is no possible way that that is good news for the gay community."

Wermiel also notes that if moderate Republican senator Arlen Specter is named chairman of the Senate Judiciary Committee and if Democrats hold true to their word to filibuster any truly radically conservative judges, there will be at least a few checks on the extent of a conservative run on the court. Court watchers long believed that White House chief counsel Alberto Gonzales would be the Administration's first choice for a Supreme Court replacement. But with Gonzales's recent appointment to the attorney general cabinet post, a nomination that people on both sides of the aisle believe will be approved, it is unclear whether he has taken himself out of the running. Gonzales was considered too "moderate" by the standards of the new far-right influence in Washington.

Speculation is cheap these days as Bush prepares for a second term. Even Senator Specter's chairmanship was up in the air as of press time. The Pennsylvanian angered conservatives only days after the election when, at a news conference, he appeared to warn the president not to nominate judges who would promise to reverse Roe v. Wade. On the left, many hope that Specter's stated position, even if politically unsavvy, will hold true.
Supreme checkup

JUSTICE AGE APPOINTED

WILLIAM H. REHNQUIST (5) 80 1972, Richard Nixon:
CHIEF JUSTICE AS CHIEF JUSTICE: 1986
 Ronald Reagan
JOHN PAUL STEVENS * (3) 84 1975, Gerald Ford
SANDRA DAY O'CONNOR * (7) 74 1981, Ronald Reagan
ANTONIN SCALIA (1) 68 1986, Ronald Reagan
ANTHONY M. KENNEDY * (9) 68 1988, Ronald Reagan
DAVID HACKETT SOUTER * (4) 65 1990, George H.W. Bush
CLARENCE THOMAS (6) 56 1991, George H.W. Bush
RUTH BADER GINSBURG * (2) 71 1993, Bill Clinton
STEPHEN G. BREYER * (8) 66 1994, Bill Clinton

JUSTICE HEALTH

WILLIAM H. REHNQUIST (5) Undergoing treatment for
CHIEF JUSTICE thyroid cancer
JOHN PAUL STEVENS * (3) Treated for prostate cancer
 in 1992 and has battled
 heart disease
SANDRA DAY O'CONNOR * (7) Successfully fought breast
 cancer diagnosed in 1988
ANTONIN SCALIA (1) Reported good health
ANTHONY M. KENNEDY * (9) Reported good health
DAVID HACKETT SOUTER * (4) Reported good health
CLARENCE THOMAS (6) Reported goad health
RUTH BADER GINSBURG * (2) Successfully fought
 colon cancer in 2000
STEPHEN G. BREYER * (8) Reported good health

* RULED IN FAVOR OF OVERTURING ANTIGAY SODOMY LAWS
IN THE 2003 LAWRENCE V. TEXAS DECISION


Wildman is The Advocate's Washington correspondent.
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Article Details
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Title Annotation:Politics
Author:Wildman, Sarah
Publication:The Advocate (The national gay & lesbian newsmagazine)
Geographic Code:1USA
Date:Dec 21, 2004
Words:825
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