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| The retirement of Supreme Court Justice Sandra Day O’Connor
has liberal and conservative groups spending millions to influence President Bush’s
choice for a replacement. (Photo by Ben Margot/AP)
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HOME > NEWS > NATIONAL NEWS
By: EARTHA MELZE COMMENTS
Gay civil rights groups issued ominous warnings in response to news of Supreme
Court Justice Sandra Day O’Connor’s retirement last week.
O’Connor, a moderate conservative appointed by President Ronald Reagan
and the nation’s first female Supreme Court justice, has been a key swing
vote on the court since 1981.
Her record on gay rights is no different. She voted with the 5-4 majority in
1986 to uphold Georgia’s sodomy law in Bowers vs. Hardwick, then voted
with the 6-3 majority 17 years later in Lawrence vs. Texas to strike down that
state’s sodomy law. Even then, O’Connor refused to join the five
other justices in striking down the Bowers ruling.
She voted with the majority in the 5-4 ruling in Dale vs. Boy Scouts to protect
that organization’s First Amendment right to bar gays from the organization,
and joined a unanimous court in Hurley vs. Irish-American Gay, Lesbian &
Bisexual Group of Boston, upholding parade organizers’ First Amendment
right to exclude a gay group from participating.
In the first landmark gay civil rights win before the high court, O’Connor
voted with the 6-3 majority in Romer vs. Evans, which overturned Colorado’s
constitutional amendment against protecting gay men and lesbians from discrimination.
But she disappointed gay rights activists just two years later when again voted
with a 6-3 majority not to even review an appellate court ruling that upheld
a similar ordinance in the city of Cincinnati.
In a rare split decision with O’Connor in the dissent, she voted in 1998
with the court’s three most predictably conservative justices —
William Rehnquist, Antonin Scalia and Clarence Thomas — in Bragdon vs.
Abbott disagreeing with the majority’s decision that HIV even without
symptoms qualifies a person for protection under the Americans with Disabilities
Act.
O’Connor’s vote was also critical in cases involving church/state
separation, affirmative action and women’s rights.
The judicial nomination process has been much in the news during recent months
as Democrats and Republicans battled over controversial nominees to the federal
bench. Many said those battles were test runs for a larger fight that would
take place should President Bush have the chance to appoint a Supreme Court
justice.
Until last week, most pundits predicted that Rehnquist, the conservative chief
justice, who is 80 and ill with thyroid cancer, would be first to retire.
The resignation of O’Connor, a key swing vote in the closely divided
court, makes certain that significant and long-term changes are close at hand
for the Supreme Court.
President Bush could announce a nominee to replace O’Connor as soon as
next week or as late as early August, but has said he will take his time in
choosing a successor. Hearings are likely in September, with a replacement ready
to take a seat on the court by the beginning of its next term, in October.
Political action groups across the political spectrum have stepped up organizing
efforts to influence the judicial selection process.
Many expect that the issue of judicial filibusters will be revisited during
the Supreme Court nomination process. A deal struck by a group of seven Republican
and seven Democratic senators allowed three of Bush’s most controversial
federal court nominees to be put to a vote.
The group, known as the “gang of 14” agreed that the Republicans
would not eliminate the Democrats’ right to filibuster and that the Democrats
would not filibuster judicial nominees except under extraordinary circumstances.
The filibuster compromise did not define what would constitute extraordinary
circumstances, and this week several member of the “gang” indicated
that only a nominee’s character or fitness, and not their judicial philosophy,
could justify a filibuster.
“In the wake of O’Connor’s announced retirement, the specter
of a sharp U-turn looms large,” warned Kate Kendell of the National Center
for Lesbian Rights, a view echoed by many other gay rights groups.
The Lawrence vs. Texas decision illustrates how powerfully a Supreme Court
decision can affect civil rights, she said.
“One day our sexual intimacy was criminal in 13 states, and the next
day that badge of inferiority was erased,” Kendell said. “The Lawrence
decision served as a lightning rod, initiating a necessary national discussion
about gay rights.”
Kendell said that she is worried that the national dialogue on gay rights could
be cut short if ...
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