On February 12th, The Human Rights Campaign announced its opposition to
a slate of anti-gay judges, nominated by the Bush administration, whose
confirmations could place courts outside the mainstream and make it
increasingly difficult for gay, lesbian, bisexual and transgender
Americans to achieve basic justice and equality though the federal
courts.
"We reject the notion that either party has been given a mandate
with regard to the federal courts and believe that Americans want judges
who are free of prejudice," said HRC Executive Director Elizabeth Birch.
"We are alarmed that the administration has put forth a slew of
unacceptable nominees whose extreme anti-gay views threaten to make the
federal courts hostile to basic equality for GLBT Americans. We urge the
Senate to oppose these nominees and to use its role of advice and
consent to ensure that only fair-minded nominees are confirmed."
HRC opposes the nomination of Assistant Attorney General Jay
Bybee to the U. S. Court of Appeals for the 9th Circuit. There could be
a committee vote on his nomination before the end of February.
In a 1997 law review article, Bybee, then a professor, offered
an extremely troubling view of the landmark equal protection case, Romer
v. Evans. In that case, the Supreme Court ruled that Amendment 2 in
Colorado was unconstitutional and said that the amendment was not
rationally related to a legitimate purpose. Amendment 2 sought to ban
any municipality in Colorado from enacting laws that would protect gay
people from discrimination.
In the article criticizing the Amendment 2 decision, Bybee
questioned the "continuing validity" of Romer and characterized sexual
orientation-inclusive civil rights laws as nothing more than
government-sponsored "preferences" for "homosexuals."
"Bybee's characterization of civil rights laws as 'preferences'
indicates a fundamental misunderstanding of the law and an antipathy
toward laws that protect the GLBT community from discrimination," said
HRC Political Director Winnie Stachelberg.
HRC also opposes the nomination of Jeffrey Sutton to the U.S.
Court of Appeals for the 6th Circuit. A hearing for Sutton was held in
late January, and the Judiciary Committee is expected to vote on his
nomination Thursday.
Sutton has been a leader in the effort to limit congressional
authority to enact laws protecting civil and disability rights. As the
gay community is impacted by HIV/AIDS, HRC is particularly concerned
about his activism in this area, which has dealt a critical blow to
legal protections for people with disabilities.
"Sutton's work has helped close the door on people with
disabilities seeking redress for discrimination by states or state
institutions," said Stachelberg. "As a community affected by hate
violence, HRC is also very concerned about Sutton's views of Congress'
authority to enact legislation aimed at curbing criminal violence, such
as hate crimes legislation."
Sutton has argued that the federal judiciary should have almost
unfettered discretion to override Congress' empirical findings in
support of its legislation, which would limit congressional authority to
protect individuals from violations of their rights – such as hate
crimes.
Additionally, HRC opposes the nomination of Timothy Tymkovich
for Court of Appeals for the 10th Circuit. As solicitor general,
Tymkovich defended Colorado's Amendment 2 and wrote a law review article
that he co-authored that appears to reflect anti-gay bias and opposition
to laws designed to protect against discrimination based on sexual
orientation.
"The article shows that Tymkovich buys into some of the worst
anti-gay rhetoric and ideology concerning our community," said
Stachelberg. "He describes anti-discrimination laws as 'special legal
protections for homosexuals' and 'special rights,' common rhetoric for
those opposed to equal protection for gays and lesbians."
In the article, Tymkovich lumped homosexuality with a litany of
"immoral" and dangerous behaviors, including sadomasochism,
cockfighting, bestiality, suicide, drug use and prostitution:
"Our society prohibits, and all human societies have prohibited,
certain activities not because they harm others but because they are
considered, in the traditional phrase, 'contra bonos mores,' i.e.,
immoral. In American society, such prohibitions have included, for
example, sadomasochism, cockfighting, bestiality, suicide, drug use,
prostitution, and sodomy. While there may be great diversity of view on
whether various of these prohibitions should exist (though I have found
few ready to abandon, in principle, all of them), there is no doubt
that, absent specific constitutional protection for the conduct
involved, the Constitution does not prohibit them simply because they
regulate 'morality.'" (emphasis added). "Amendment 2, while not
primarily about moral judgment, reflects a social statement about state
and local laws benefiting homosexual conduct."
"Tymkovich's statements are insulting to GLBT citizens whose
lives are affected by discrimination and violence, and for whom the
even-handed enforcement of civil rights laws is of the utmost
importance," added Stachelberg. "Furthermore, his assertion that GLBT
anti-discrimination laws protect a type of conduct rather than a group
of people is inconsistent with medical and psychological research and
with public opinion."
HRC has also opposed the nomination of Mississippi Judge Charles
Pickering to the 5th Circuit Court of Appeals because his career has
been punctuated by racial divisiveness and anti-gay sentiments. Last
year, HRC opposed the nomination of Michael McConnell to the 10th
Circuit Court of Appeals. McConnell, who was confirmed by the Senate in
November 2002, contributed to the anti-gay brief for the Boy Scouts in
the Boy Scouts of America v. Dale.
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