By Bob Roehr
WASHINGTON – Four national LGBT organizations joined together to oppose the confirmation of John Roberts to the US Supreme Court in a statement issued Aug. 25. They are the Human Rights Campaign, National Gay and Lesbian Task Force, National Center for Lesbian Rights, and Parents, Families and Friends of Lesbians and Gays.
The National Stonewall Democrats board of directors voted to take a similar position at their national convention in San Diego Aug. 26-28.
Other national LGBT organizations are awaiting the confirmation hearing on Roberts that is scheduled to begin on Sept. 6 before making their decisions.
“Judge Roberts has such a narrow view of what the courts can and should do, it’s a wonder he wants the job at all,” said HRC president Joe Solmonese. “Ultimately, this is about an individual’s right to privacy. From women’s rights to religious freedom to civil rights, there is powerful evidence that Judge Roberts would rule against equality.”
“For his entire adult life, John Roberts has been a disciple of and promoted a political and legal ideology that is antithetical to an America that embraces all, including lesbian, gay, bisexual and transgender people,” asserted Matt Foreman, executive director of the Task Force.
Kate Kendell, executive director of the NCLR said, “There is nothing in Robert’s history as a lawyer, policy maker, or judge to indicate that he would be anything other than hostile to the claims of those seeking to preserve affirmative action, reproductive freedom and fundamental rights.”
In an email to its supporters later that day, HRC said, “We have opposed only those [judicial] nominees whose records indicated a clear hostility to the enforcement of civil rights.” However, HRC did not oppose Roberts in 2003 when he was nominated and confirmed to the US Court of Appeals for the District of Columbia Circuit, which often is called the second most important court in the nation.
“My disappointment with HRC’s position is that they are allowing ideology to trump interest, something our political organizations should never do,” said a politically attuned Democrat and former senior staff member at HRC. He asked not to be identified because of his current affiliation.
“I would have argued for an endorsement of Roberts the moment it was revealed that he helped on Romer.” Romer v Evans is the 1996 Supreme Court decision that struck down Colorado’s Amendment 2 as discriminating against gays and was the first major victory for the community in the Court.
“Roberts is clearly qualified, is likely to be confirmed, and it would have been in our best interest to have been seen supporting him. Opposing him after his (perceived or real) help on Romer violates one of the central rules of politics: You should always dance with the fellow that brought you to the party.”
Some organizations have resisted jumping on the opposition bandwagon.
Lambda Legal has initiated a “Courting Justice” campaign based upon 30 questions it would like Roberts to answer during the hearing, and it is pressuring Senators to seek answers to them.
Log Cabin Republicans is still in a “wait and see mode,” said spokesman Christopher Barron. They are working “to assure that the right questions get asked about Judge Roberts’ stands on issues of basic fairness for gay and lesbian Americans.”
Barron declined to discuss what those questions might be and said it was too early to speculate on whether they would take a position for or against the confirmation of Roberts.
The National Black Justice Coalition expressed “concern” about Roberts when the nomination was made, but it has gone no farther. They, too, will closely monitor the hearing and have yet take a position.
Executive director H. Alexander Robinson said they were “not sent the release [opposing Roberts] nor included in the discussions about it,” though he was asked about timing and strategy of such a release. He said the four groups issuing the release would have to be asked why NBJC was not asked to participate. Other organizations also were puzzled as to why they were not approached to participate.
HRC hosted a forum of its liberal allies at its headquarters on the evening of Aug. 24, just hours before releasing its statement of opposition. The forum’s purpose was to explain the legal issues of concern to those groups and how Roberts might threaten them. It was broadcast live on C-SPAN.
Judith Schaeffer, deputy legal director of People For the American Way, which announced their opposition to Roberts earlier that day, dismissed Roberts assistance in preparing for the Romer case as telling us “nothing about what John Roberts thinks about the case.”
“I would cut him a little slack,” said Mark Agrast, a senior fellow at the Center for American Progress and once an aide to openly gay Congressman Gerry Studds (D-Mass.), now retired. “It is not necessarily a given that then professor [now Supreme Court Justice Antonin] Scalia would have done the same thing…It does suggest to me that [Roberts] is not someone who has an allergy to gay rights concerns. I would put it in the positive column.”
Georgetown University law professor Chai Feldblum’s reaction was, “Good, this guy is not homophobic.” But she ascribed it more to “where [gay people] have come in society…He could well be a very fine man, but that doesn’t translate into whether he is going to be a good judge on the Supreme Court.”
“Uniformly people agree that this is a smart, smart guy,” said HRC’s senior legal counsel Lara Schwartz. “I would hire him in a heartbeat if we did constitutional litigation here…But it doesn’t mean you want him as your justice, because this is someone with extreme, long-term conservative views on the issues…[his record] points to a proclivity for narrowing the [federal] government’s role in helping people.”
However, it is not clear that one always wants the federal government to play a strong role, as supporters of medical marijuana found out earlier this year. The Court’s “liberals” overrode the decision of California voters on medical marijuana in defense of the commerce clause of the Constitution, while most of the “conservatives” supported the state’s decision to allow access to marijuana.
In fact, over the next decade or more, some would argue that the best way to preserve the beachhead of marriage equality for gays in Massachusetts and possibly soon in a few other states, is through a federalism argument that keeps the national government out of the marriage business and allows the states to function in their role as laboratories of democracy in working out this socially contentious issue.
Schwartz conceded that Roberts’ confirmation hearing is likely to be “a little bit of Kabuki Theater [a stylized presentation where the script has not changed in hundreds of years]. He is one of the best oral advocates ever to appear before the Court…It is going to be really hard to get him to answer a question that he doesn’t want to answer or has been instructed not to answer.”
It is highly unlikely that the hearing will produce any blockbuster revelation or exchanges. Given Roberts apparently unanimous support among Senate Republicans, the favorable reception he has received from many Democrats, and the willingness of only a handful of liberal Democrats to support him, it is very likely that Roberts will be confirmed and take a seat on the Court when it convenes on the first Monday in October.