Questions about

Questions about

When President
Bush’s stealth Supreme Court nominee, Harriet Miers,
withdrew and was replaced by Samuel Alito, it presented LGBT
Americans with a different challenge: Rather than
analyze a candidate with a very thin paper trail, we
must assess a nominee with a long and voluminous track

While Alito was
swiftly and roundly condemned by some, the challenge of
analyzing 15 years of court decisions and other tidbits of
“evidence” became apparent to
others—even if Alito is the darling of antigay groups
like the Family Research Council and Concerned Women of

Some have found
hope in aspects of Alito’s judicial record. Others
have even suggested that we might find reason for
optimism in Alito’s seeming openness to gay
rights when responding to a class assignment while a
senior at Princeton University in 1971.

As a legal
organization we spend a lot of time figuring out what
arguments will work in the courtroom, so we’ve
developed quite a bit of experience over the past
three decades learning how to “judge judges.”
From that experience we know that generally speaking, some
things are more important than others when trying to
determine how a judge is likely to approach his or her
job. While it’s tempting to try to read meaning
into any single tea leaf that floats to the surface,
we’re all better served if we keep our eyes on
the breadth of information that is in fact likely to
make a difference. With that in mind, here are some
questions we are now trying to answer regarding Samuel

How does he approach “big picture”
constitutional issues like privacy and equal protection?
There’s no question that LGBT people have made
some of our greatest progress in recent years at the
Supreme Court. And our wins in cases like Lawrence
v. Texas
—which eliminated all remaining
sodomy laws in the country—have occurred
because a majority on the high court treated the U.S.
Constitution as a living document whose meaning evolves with
time. Because of this approach the court has recognized that
fundamental guarantees like equal protection and the
right to privacy apply to LGBT people, even if the
founding fathers weren’t thinking about us when the
Constitution was written. Will Samuel Alito take a similar
approach, or is he committed to a rigid and narrow
approach to the Constitution that could leave LGBT
people out in the cold?

Is there reason to believe that he’ll go out of
his way to rule against equality for LGBT people or
fairness for people with HIV?
Unfortunately, some judges have an ideological
commitment to a certain perspective, and they twist
their judicial analysis so that their rulings serve
that ideology. (This has been our concern with some of
those President Bush has sought to appoint to the federal
appeals court.) Is Samuel Alito predisposed to rule
against rights for LGBT people and those with HIV, so
that we won’t have a level playing field no matter
how strong our legal arguments?

Does he respect Congress’s power to address
important national problems like civil rights?
One thing that many very conservative judges have in
common is an extremely narrow view of
Congress’s power to pass laws to address
important national problems. This is one aspect of
“federalism.” Conservative Supreme Court
justices like Clarence Thomas and Antonin Scalia have
led a “federalism revolution” that has struck
down or limited the application of numerous federal
laws on the grounds that Congress didn’t have
the power to pass them in the first place. This approach is
very dangerous for minority groups who face discrimination
and need the federal government’s help to
outlaw it. For example, the Americans with
Disabilities Act—the most important federal law that
protects people with HIV and other people with
disabilities—has repeatedly been attacked on
federalism grounds.

Is he sensitive to the rights of the individual in
opposition to corporations or the government?
One of the main goals of the LGBT community has been to
pass laws that prohibit discrimination based on sexual
orientation and gender identity; we’ve also
fought to make sure that disability discrimination
laws protect people with HIV. Those laws apply to
discrimination by employers and other corporations,
and to discrimination by the government. But some
conservative judges have a strong bias in favor of
corporations and the government over individuals. As a
result, they issue rulings that make it extremely
difficult to enforce individual rights under
antidiscrimination laws. Is Samuel Alito that kind of judge?

Does his judicial philosophy embrace a woman’s
right to choose?
Cases like Roe v. Wade, by strengthening
the right to privacy, paved the way for important LGBT
legal victories like Lawrence v. Texas. If Roe
were to be overturned, it could imperil Lawrence
and future LGBT rights cases that are built on our rights to
privacy and liberty. So our future success at the
Supreme Court depends to a significant degree on
continued constitutional protection for a woman’s
right to choose.

Given Samuel
Alito’s long track record, it’s too early for
us to have definitive answers to these questions. One
thing seems clear: As highly respected attorney Larry
Lustberg (who has known Alito for 22 years) said,
“Make no mistake: he will move the court to the
right.” At the same time, there is some
evidence that suggests Alito may not have an
ideological ax to grind against LGBT people.

There’s no
surefire way to get into the head of a Supreme Court
nominee, and we certainly can’t rely too much
on old tidbits of information like a college
assignment. But if we stay focused on finding the answers to
the questions I’ve discussed here, we have a
much better shot at correctly “judging the

The next step is
in the hands of the Senate—and by extension the
citizens who elected them. We must all weigh carefully
the information that speaks most directly to Judge
Alito’s judicial philosophy and assess whether he
would be a fair Supreme Court justice for all Americans.

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