Oct 7, 2005
Volume 33
Issue 40

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Bush nominates Miers for U.S. Supreme Court
Bush nominates Miers for U.S. Supreme Court
'More was known about her attitudes towards Gays than was known about Roberts.'

By Lisa Keen - SGN Contributing Writer

There was plenty of cause for Gays to experience whiplash as the U.S. Supreme Court opened its 2005-06 session this week. First was the sight of the court's most liberal justice, 85-year-old Justice John Paul Stevens, stumbling as he escorted the court's new Chief Justice, John G. Roberts Jr., down the steps of the court in a ceremonial welcome walk. Then came news that President Bush's nominee to fill the seat being vacated by Justice Sandra Day O'Connor is a 60-year-old woman who has never married and who has been heavily involved in Exodus Ministries. Heads whipped.

Although at least one reporter asked Senate Judiciary Committee Chairman Arlen Specter about Harriet Miers' involvement in an ex-Gay group, the White House and Gay organizations checked and corrected that record before noon Monday. Exodus Ministries is a Dallas-based group that helps ex-prisoners find housing. Exodus International is the organization serving people who think they were Gay but are no longer.

Last year, when Miers became the White House counsel, the New York Times noted that she has "an extremely low profile" in Washington, D.C., and that she "is often the only woman who accompanies Mr. Bush and male staff members in long brush-cutting and cedar-clearing sessions at the president's ranch." Those two notes alone were enough to inspire some bloggers to start speculating about her sexual orientation. But bloggers and rumor mills speculate about just about everybody, with or without cause.

What will be important to Gay legal activists are her legal and political orientations, and early signs are that she is not beholden to extreme conservatives and may be more in the mold of O'Connor.

"The president realizes that the views of the extreme right wing of his party aren't the views of the American people," said Schumer, a member of the Judiciary Committee who is supportive of equal rights for Gays. But, added Schumer, "we know less about this nominee than we knew about Roberts."

But by the end of the day Monday, much more was known about her attitudes towards Gays than was known about Roberts.

The Associated Press reported that, during her campaign for the Dallas City Council in 1989, she indicated on a Gay group's questionnaire to candidates that she favored equal civil rights for Gays but opposed to repealing the Texas sodomy statute, which prohibited only same-sex couples from engaging in sex.

"The biggest fear," said Slate magazine, explaining the reaction of conservatives, "is that she is a Souter in St. John knits: a justice insufficiently conservative who will only become more liberal once she gets on the bench." James Dobson of Focus on the Family supports her, however, because she is opposed to abortion and has belonged for many years to an evangelical church.

The New Republic magazine was reporting online that, in 1998 as chairman of an American Bar Association committee, she submitted a report that recommended the organization support "the enactment of laws and public policy which provide that sexual orientation shall not be a bar to adoption when the adoption is determined to be in the best interest of the child."

Roberts' assumption of the Chief Justice position is unlikely to change the teetering balance of the court on Gay-related cases because he replaces the late Chief Justice William Rehnquist who voted against the interests of Gays every chance he got. But Miers, if confirmed, will replace a moderate swing vote, Justice Sandra Day O'Connor, who voted in the interests of Gays during her last years on the court.

Meanwhile, as Gay groups muster up once again to scrutinize a Supreme Court nominee and plead their case that she, too, should be committed to equal protection for Gays, the easy confirmation of John Roberts September 29 -78 to 22- was not much encouragement.

The real issue for Gay groups is commitment to treating Gays fairly under the law. Roberts undermined the one hint that he could treat Gays fairly. He gave advice to pro-Gay attorneys who challenged Colorado's anti-Gay Amendment 2 in the 1996 landmark Supreme Court case Romer v. Evans. But during his confirmation hearing, he told senators he would have given advice to the state, too, had it asked him first.

While both Democrats and Republicans in the Senate said they wanted Roberts to be committed to preserving the U.S. Constitution, the real bottom lines seemed more overtly political, and there is no reason to expect otherwise with Miers. One side wants a justice who will freeze the constitutional text in a time and place where Gay people did not exist. The other wants a justice who will interpret the constitution in the context of modern times and in a spirit that secures the blessings of liberty for all Americans, even those who were as invisible in 1787 as Alaska and Hawaii.

And then, there is the vast middle of the Senate which, at least with the Roberts nomination, seemed to go along to get along -either because their party or their polls told them to.

Miers may have a much harder time evading questions in the astute manner that served Roberts so well. Because she has never been a judge, she is unlikely to have the readiness to wax on and on about what other justices wrote in decisions. That was how Roberts managed to talk a lot but say very little about his own opinions concerning such matters as the Lawrence v. Texas, the 2003 decision which overturned sodomy laws.

But certainly conservatives in the Senate felt comfortable with Roberts -either because of something he didn't say or something they learned about him elsewhere. There was a common refrain from various conservative senators, such as Sen. Wayne Allard (R-Colo.) and Sen. Jim Bunning (R-Ky.), that Roberts would not be doing anything to advance the cause of same-sex marriage.

In assessing what Roberts' confirmation means to the Gay community, Lambda Legal Defense and Education Fund stretched to find a silver lining. Within minutes of the confirmation vote Thursday, it sent out an email saying that, while it opposed Roberts, "the civil rights of LGBT people were an important focus of a Supreme Court confirmation hearing for the first time ever."

Lisa Keen is a 20-year veteran of the newsroom, covering national politics and law in Washington, D.C. She has won awards from the American Bar Association and the Society for Professional Journalists and co-authored Strangers to the Law, a book about a landmark U.S. Supreme Court case. Her commentaries have appeared in a number of publications, including the Washington Post, and her reporting has taken her to five continents, including her first journey to South America last summer.

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