By Lisa Keen
WASHINGTON – When right-wing anti-gay conservatives such as Gary Bauer and James Dobson hate something, it’s a pretty sure bet gays will like it. But when the U.S. Senate agreed this week to set aside a plan to eliminate use of the filibuster for judicial nominees, the reaction from gay political quarters was decidedly tempered.
Bauer, head of American Values, and Dobson of Focus on the Family, said the compromise is a “sell out” and a “complete bail out,” respectively.
For gays, the good news was that, at least for now, the Democratic minority will retain some ability to filibuster ultra-conservative nominees to the federal courts.
But National Gay and Lesbian Task Force executive director Matt Foreman said the compromise left him feeling “a deep foreboding” and Kevin Cathcart, executive director of Lambda Legal Defense and Education Fund said it comes at a “high price for the LGBT community.”
In order to get enough Republicans to vote to protect the filibuster, Democrats had to agree to allow the Senate to vote on three judicial nominees, including one whom Lambda characterizes as “perhaps the most anti-gay federal judicial nominee in memory.” That nominee is William H. Pryor.
“Compromise is never pretty, especially when involves allowing somebody as anti-gay as William Pryor to get a lifetime appointment to the federal appeals court,” said David Smith, Vice President of Policy for the Human Rights Campaign. “That is certainly not good.”
But faced with the prospect that Republicans needed only 51 of their 55 votes to eliminate the filibuster and then approve all nominees, he said, the compromise’s result has to be seen as “positive.”
To end an ongoing filibuster, Senate Majority Leader Bill Frist (R-TN) needed all 55 Republicans and five additional votes. But to eliminate the filibuster, all he needed was a ruling from Republican Senate President Dick Cheney that filibusters cannot be used during consideration of judicial nominations. Assuming Cheney was poised to deliver such a ruling and that Democrats were poised to object to it, the Senate could have eliminated filibusters with a simple majority.
So the night of May 23, when seven Republicans announced that they had agreed to a compromise with seven Democrats to allow filibusters only in “extraordinary circumstances,” those seven Republicans effectively refused to vote the party line on Frist’s plan – which former Majority Leader Trent Lott had dubbed the “nuclear option.”
Publicly, Frist welcomed the compromise, but on the floor of the Senate on May 24, it was clear he was still squaring for a fight. He said the nuclear option was “still on the table” and that he would “not hesitate to use it, if necessary.”
HRC’s Smith said he is not worried about Frist’s comments because the Frist plan cannot succeed without at least three of the seven Republicans deciding to abandon the compromise. The seven who signed on are some of the senate’s most respected Republicans, including John McCain (AZ) and John Warner (VA), and among the least prone to getting in line as mere partisan proxies.
In fact, the compromise appears to be more a product of creative negotiations rather than the more routine trade-offs between left and right. HRC’s Smith said the 14 senators working on the compromise did not provide outside organizations with any opportunity to say which nominees they would be allowed to the floor. Had gay organizations been consulted, Pryor would have been at the top of the “extraordinary circumstances” list.
“Pryor has compared our love to bestiality, incest and pedophilia,” said Lambda’s Cathcart. “He says prohibiting anti-gay discrimination is giving us ‘special privileges.’ And he thinks one of our recent Supreme Court victories against anti-gay bigotry amounts to ‘new rules of political correctness.'”
Smith says “every effort will be made” to defeat Pryor’s nomination when it is brought to the floor.
The compromise did not include a floor vote for one anti-gay nominee – William G. Myers III, whom President Bush nominated to 9th Circuit (San Francisco). Myers has said he agrees with the 1986 Bowers v. Hardwick decision in which the U.S. Supreme Court upheld laws prohibiting sodomy between consenting same-sex adults. He could get a floor vote, but he’ll need 60 votes to stop the expected Democratic filibuster.
Reacting to the compromise this week, Gary Bauer said the compromise means that it is “now more likely that radical social change will continue to be forced on the American people by liberal courts committed to same-sex marriage, abortion on demand and hostility to religious expression.”
James Dobson called it “a complete bailout and betrayal by a cabal of Republicans and a great victory for united Democrats.”
“We share the disappointment, outrage and sense of abandonment felt by millions of conservative Americans who helped put Republicans in power last November,” said Dobson. “I am certain that these voters will remember both Democrats and Republicans who betrayed their trust.”
The seven Republican senators who signed onto the compromise, in addition to McCain and Warner, were Mike DeWine (Ohio), Olympia Snowe and Susan Collins (Maine), Lindsey Graham (South Carolina), and Lincoln Chaffee (Rhode Island).
The seven Democrats included Ben Nelson (Nebraska), Robert Byrd (West Virginia), Mary Landrieu (Louisiana), Ken Salazar (Colorado), Mark Pryor (Arkansas), Joseph Lieberman (Connecticut), and Daniel Inouye (Hawaii).
Lambda Legal, which only recently entered the political fray over judicial nominees, plans to oppose another nominee whose chance for a floor vote is still uncertain. That nominee is Terrence W. Boyle, whom President Bush nominated to the 4th U.S. Circuit Court of Appeals. Boyle, a former aide to virulently anti-gay Senator Jesse Helms (now retired), was said to have a “really horrific track record” on the Americans with Disabilities Act, which prohibits discrimination against people with HIV and other disabilities.