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.
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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|Publication:||The Advocate (The national gay & lesbian newsmagazine)|
|Date:||Dec 21, 2004|
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