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Questions about

Questions about


The answers remain shrouded, but here's a brief guide to the questions we as LGBT people need to be asking in order to judge whether President George W. Bush's Supreme Court nominee will support or block our rights

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 record.

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 America.

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 Alito:

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 judge."

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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