By Hastings Wyman
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.