The action on LGBT rights issues in the next few years will be in appeals courts, not the Supreme Court
In just a couple of months, speculation concerning the retirement of U.S. Supreme Court Justice John Paul Stevens will once again rev up. He’ll turn 90 in April and he did not hire a full complement of clerks for the 2010-11 session last fall, the time when most justices typically fill their staff.
As critical as that potential vacancy is to the prospects of such legal battles as the ones over equal rights in marriage, the more important focus right now should be on appointments to the nation’s federal appeals courts.
First, every single one of the current nine justices came from a federal appeals court, as did 12 of the last 14 appointees. This is not a legal requisite for the job, but it has become a political expectation. President George H.W. Bush appointed Clarence Thomas to the U.S. Court of Appeals for the D.C. Circuit in 1990 and then promoted him to the U.S. Supreme Court in 1991.
President George W. Bush appointed John Roberts to the D.C. Circuit in 2003 then bumped him up to the high court in 2005. President Reagan put Antonin Scalia on the D.C. Circuit bench in 1982 and then appointed him to the Supreme Court in 1986.
Second, 19 of the appeals courts’ 179 seats are currently vacant. President Obama has only eight nominees pending for these positions. All eight are relative moderates. The same might be said of four other circuit court nominees whom Obama made and who have been confirmed thus far.
Joseph Greenaway, who was confirmed just this month for the 3rd Circuit, clerked for a district court appointee of Republican President Gerald Ford.
Andre Davis, confirmed in November to sit on one of the nation’s most conservative circuits — the 4th — worked in the Civil Rights Division of the Department of Justice in the last months of President Jimmy Carter’s administration. But Sen. Dick Durbin, D-Ill, noted that some disability rights groups have criticized Davis’ record.
Gerald Lynch, confirmed to the 2nd Circuit last September, has perhaps the most liberal-leaning credentials. He clerked for one of the U.S. Supreme Court’s most liberal justices, William Brennan, from 1976 to 1977, and, until he became a federal district court judge in New York, he belonged to the ACLU.
Also, in answering a staple question on the Senate Judiciary Committee questionnaire —about whether nominees have ever belonged to a group that discriminated on the basis of "race, sex, religion, or national origin" — Lynch wrote, "I have never been, nor would I ever be, a member of any club or organization that discriminates on the basis of race, gender, religion, national origin, age, disability, or sexual orientation."
David Hamilton, who was confirmed in November to the 7th Circuit, was also once a board member of the state ACLU in Indiana. His record includes authoring a brief in a divorce case defending the right of a father with HIV to retain his parental rights. Hamilton said terminating those rights because the man had HIV was unconstitutional.
Of the eight nominees still awaiting confirmation, three are in the 4th Circuit where their numbers could well tip the political balance toward the middle.
Only one of the nominees for that circuit, Barbara Keenan, has any sort of paper trail on gay-related matters. Keenan, who has served since 1991 on the Supreme Court of Virginia, wrote the dissent from the state court’s 1995 decision denying Sharon Bottoms custody of her child because Bottoms was openly gay.
More recently, Keenan wrote the unanimous decision respecting a decision of a Vermont family court that granted joint custody of a child to both the biological mother, Lisa Miller, and her former civil union partner, Janet Jenkins. In both cases, however, Keenan’s reasoning was based on procedural issues.
As a trial judge, Keenan in 1984 ruled that the state went too far when it forced a bookstore to shut down because sexually explicit activities —including homosexual activities — were taking place at the store. Keenan ruled that closing the store was too broad a remedy to address the problem. An appeals court later reversed her decision.
In the 11th Circuit, Obama nominated Beverly Martin, who was hired by the notoriously anti-gay Georgia Attorney General Michael Bowers to be an assistant attorney general. During the 10 years she was in that position, Bowers withdrew a job offer from attorney Robin Shahar when he found out she was a lesbian. There is no indication that Martin was involved in defending Bowers when Shahar filed a federal lawsuit against him.
The only other case of relevance for her was a case she ruled on as a federal district court judge in Georgia. In that case, Martin ruled that a public school dress code against clothing that displayed "words or symbols that are inflammatory, derogatory, insulting to other students, or in reference to gangs" was "void for vagueness." Such laws have had a mixed record of being used to protect against hate-related messages directed at gays.
Gay civil rights issues have been of some interest to Republicans on the Senate Judiciary Committee. During the confirmation process, judicial nominees answer questions at a public hearing but also questions posed to them in writing. Many of the questions posed by Republicans thus far have been essentially identical, suggesting some outside entity submitted the questions to each of the Republican senators and asked them to pose the questions to the nominees.
One question asks, in a roundabout way, about the constitutionality of the Defense of Marriage Act (DOMA).
Hamilton essentially dodged the question by offering that he was "not aware of any court decision concluding that [DOMA] would violate the United States Constitution."
One of the more unusual questions was this: "During his campaign, President Obama announced: ‘We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old — and that’s the criteria by which I’ll be selecting my judges.’ Which, if any, of these categories do you believe best describes your judicial philosophy as laid out by the president?"
Most of the nominees have dispensed with the question fairly quickly, saying either that empathy plays no role in their judicial decision-making or that, to the extent that it does, it is empathy for all.
"Federal judges take an oath to administer justice without respect to persons and to do equal right to the poor and to the rich," wrote Hamilton. "Empathy for all parties — to be distinguished from sympathy — is important in fulfilling that oath. If confirmed, I will apply the law fairly and accurately to all parties before me."
Most importantly, President Obama has 12 more vacancies on the circuit courts which he has not yet submitted a nominee. That includes two appointments, as of this month, to the 9th Circuit U.S. Court of Appeals, which covers California and which is expected to hear the landmark Proposition 8 case as early as next year.
And given that most cases are never heard by the U.S. Supreme Court, the appointments to the appeals court level have the potential to affect LGBT lives in the various circuits for years to come.
Â© 2010 Keen News Service
This article appeared in the Dallas Voice print edition February 19, 2010.