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The real activist judges

The real activist judges


The Bush administration has worked diligently to nominate right-wing ideologues to the federal bench. The battle has reached a boiling point and and there's too much at stake for gay men and lesbians not to fight

The right wing has come up with another way of trying to limit the basic rights that protect LGBT people on a day-to-day basis, and that's by controlling the courts for decades to come. Many of our community's most significant civil rights successes have come through strategic lawsuits. Those hard-won rights (and the rights we still need to win) are in jeopardy this week as Republicans were poised to change long-standing Senate rules so that extremist ideologues can become federal appeals court judges.Republican majority leader Bill Frist's threatened trashing of Senate rules to eliminate the filibuster of any judicial nominees, no matter how extremist, has temporarily been avoided. But the compromise among moderate senators included an agreement to allow three of the president's most controversial nominees to go to the full Senate for likely confirmation. And one of those is perhaps the most antigay federal judicial nominee in recent memory.The Bush administration has from day one worked diligently to include a cluster of right-wing ideologues among its nominations to the federal bench. In the vast majority of instances, the Senate has deferred to the president's power to nominate federal judges, and hundreds of George W. Bush's nominees to the bench have been confirmed.To date, Senate Democrats have drawn the line at a small number of nominees who represent the "fringe of the fringe," with track records that make it crystal clear that they will not be open-minded in cases involving civil rights claims. These most controversial of nominees have already been refused confirmation by the Senate. Undaunted, President Bush has taken the highly provocative step of renominating them en masse and is determined to do whatever it takes to get every last one of them on the bench.Two of the extremist nominees who will have the most dire consequences for our community are perilously close to joining influential appellate courts. One of them--William H. Pryor--was among the three who will catapult ahead to a Senate vote as a result of the filibuster compromise. The other, Terrence Boyle, isn't far behind. Both Pryor and Boyle have well-established track records of hostility to the rights of our community.William H. PryorPryor was previously nominated to the 11th circuit of the federal court of appeals by George W. Bush but failed to win Senate confirmation because of his extreme judicial views, hostility to LGBT and other civil rights litigants, and refusal to distinguish between his personal religious beliefs and governing legal standards.In fact, the Atlanta Journal-Constitution describes Pryor as a "right-wing zealot [who] is unfit for confirmation." After Pryor's nomination failed in the Senate, President Bush, in a highly unusual move, temporarily placed Pryor on the 11th circuit while the Senate was in recess. During his short tenure on the appeals court, Pryor cast the deciding vote that ended a constitutional challenge to Florida's unique and notorious antigay adoption law, which prohibits gay people from adopting under any circumstances. This came as no surprise, since Pryor is perhaps the most demonstrably antigay judge nominated to a federal appeals court in our memory.Pryor's biased approach to LGBT people is apparent in a brief he authored in Lawrence v. Texas when he was attorney general in Alabama. Advocating in favor of sodomy laws, Pryor placed the rights of gay people on a legal par with "prostitution, adultery, necrophilia, bestiality, possession of child pornography, and even incest and pedophilia."Pryor also has voiced disdain for the Supreme Court's decision in Romer v. Evans, which struck down a voter-enacted amendment that made antigay discrimination a constitutional principle in Colorado. While the court ruled that the homophobic amendment was an unprecedented violation of equal protection under the law, Pryor said the dispute was about "special privileges or rights for homosexuals."If William Pryor had his way, gay sex would be a crime, nondiscrimination laws for LGBT people would be blocked, and gay people would be barred from adopting children. Pryor's approach to the law presents untold dangers for our day-to-day lives.

Terrence BoyleFederal district court judge Terrence Boyle has repeatedly been nominated to the appellate bench (by both George W. Bush and his father) and repeatedly has failed to win Senate confirmation because of his extreme judicial views and hostility to civil rights litigants. Indeed, Boyle persistently has demonstrated his willingness to step outside the judicial mainstream and ignore well-established law in order to rule against people where civil rights are at stake.Of particular concern is Boyle's radical approach to the Americans With Disabilities Act--an approach marked by disregard for the law and antipathy to the claims of disabled people.Since its enactment in 1990, the ADA has been instrumental in protecting people with HIV from being fired from their jobs or thrown out of their homes. Judges like Boyle would change all that. If his rulings in disability cases to date were applied to people with HIV, they would effectively give employers permission to turn their irrational fear of AIDS into an excuse to fire dedicated employees. In fact, Boyle's approach to the ADA would open the door for employers to fire with impunity people with HIV.Sadly, the public record indicates that in his more than 20 years as a federal trial court judge Boyle has never ruled in favor of a plaintiff in an ADA case.Boyle's blatant disregard for the law has contributed to his unusually high reversal rate on appeal. In fact, Boyle has been reversed more often than any other district court judge nominated to an appeals court by President Bush. There is no question that, given the opportunity, Terrence Boyle would use his platform on the federal appeals court to severely undermine legal protections for people with HIV.Pryor and Boyle are only two examples of the kind of judges that conservatives are trying to push through with the "nuclear option"--a threat to end more than 200 years of checks and balances by eliminating the right of a minority of senators to filibuster highly controversial judicial nominees. If the federal courts are overtaken by judges like this, our legal rights to live day-to-day without discrimination will hang in the balance. We can't let them turn back the clock.The Supreme Court's infamously homophobic decision in Bowers v. Hardwick, which upheld sodomy laws, was decided by one vote in 1986. The LGBT community spent the next 17 years under that dark legal cloud. Imagine where we might be today if we had eliminated sodomy laws in 1986 instead of 2003.Antigay bigots will do anything to keep our community from winning in court.Will you do anything to stop them?Cathcart is the executive director of Lambda Legal. To learn how you can become part of Lambda Legal's Courting Justice campaign click on
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