How to pick the next Supreme Court justices

Where will the next Supreme Court justice stand on gay equality? At this point, no one knows. However, here are some general guidelines as the battle for the bench begins to heat up

BY Kevin Cathcart

July 12 2005 11:00 PM ET

With the retirement announcement of Justice Sandra Day O’Connor and rumors swirling about Chief Justice William H. Rehnquist, the long-anticipated battle over the future of the Supreme Court is here. We’ve seen the kinds of right-wing zealots that President Bush has nominated to lower federal courts. Now that we’ve come to the granddaddy of them all—the U.S. Supreme Court—the stakes could not be higher for the LGBT community and the nation as a whole.

The Supreme Court must be fair, independent, and a counterpoint to the other branches of government, which often are heavily swayed by their political bases and the politics of the moment. For this reason, Lambda Legal has called on President Bush to nominate individuals who will stand up for the rights and freedoms of all Americans, rather than pursue the narrow political agenda of the radical right. Regardless of who the president nominates, the Senate must fulfill its sworn duty under the U.S. Constitution to conduct a thorough, independent review of each nominee, and not just act as a political rubber stamp for the Administration’s selections.

Many of the president’s federal judicial nominees to date have not had an explicit track record on LGBT or HIV issues, and the same may be true of the individuals he advances to fill Supreme Court vacancies. Fortunately, by looking at a nominee’s rulings on issues like reproductive rights and the Americans With Disabilities Act, we usually can get a sense of how that person views the broader concepts of liberty, privacy, and equality—principles that inform most LGBT and HIV rights cases. Evaluating Supreme Court nominees on these issues means we won’t be silenced by stealth candidates whose future positions on our equality may be all too predictable and could set us back decades. So, here are issues on which you can judge the Supreme Court nominees.

Privacy and Individual Liberty

Good nominee: interprets the U.S. Constitution as a living document and recognizes that private, consensual intimacy is safeguarded from government intrusion by the constitutional protection of "life, liberty, and property." For example, the Supreme Court’s decision in Lawrence v. Texas protected private, consensual same-sex intimacy and said it couldn’t be made a crime.

Bad nominee: interprets the federal Constitution narrowly to protect only what the Constitution explicitly says and what the founding fathers supposedly would have protected. For example, the Supreme Court’s homophobic decision in Bowers v. Hardwick (overruled by Lawrence) held that same-sex intimacy could be made a crime because the country historically had sodomy laws.

Reproductive Freedom

Good nominee: recognizes that a woman’s right to choose is protected by the Constitution’s protection of “life, liberty, and property.” This constitutional principle is also important for LGBT people because the right to sexual intimacy is protected by this very same right to liberty. For example, when the Supreme Court struck down all remaining sodomy laws in the Lawrence case it relied on reproductive freedom cases like Roe v. Wade as supporting legal precedent.

Bad nominee: interprets the federal Constitution narrowly to protect only what the Constitution explicitly says and what the founding fathers supposedly would have protected. For example, conservative justice Antonin Scalia stated in one reproductive freedom case that a woman doesn’t have the right to choose an abortion because “the Constitution says absolutely nothing about it.”

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