By now it is apparent to most GLBT Americans that President George W. Bush will have massive power not only to appoint a new conservative Supreme Court chief justice but maybe up to four other new justices to the nation's highest court. Their conservative interpretation of the law will have a profound impact for decades to come, especially on marriage rights for same-sex couples and gay rights in the wake of the court's 2003 Lawrence v. Texas ruling, which overturned sodomy laws.
After all, at age 80, William Rehnquist is already one of the oldest and longest-serving chief justices in history. His recent diagnosis of thyroid cancer means that he almost surely will be the first justice to step down in 10 years. (As of press time he had not announced his plans.) Other justices are aging too: John Paul Stevens is in his 80s, and Ruth Bader Ginsburg and Sandra Day O'Connor are in their 70s.
Since the 2000 election, Bush has maintained a very clear position on what kind of resume that he believes makes for a good judicial candidate. He consistently declares a desire to nominate "strict constructionist" judges; that is, those who "will faithfully interpret the law, not legislate from the bench."
To gay rights groups, the terms "legislating from the bench" and "activist judges" are code for the type of decision that the Massachusetts supreme court handed down that legalized same-sex marriage in the state. Such decisions are virtually guaranteed not to come from nominees proposed by the Bush White House. The president has long professed admiration for justices Antonin Scalia and Clarence Thomas--the two most conservative judges on the high court, both of whom dissented on Lawrence v. Texas.
Before we panic, there is some small solace: "If it is only Rehnquist," says Stephen Wermiel, a law professor at American University who specializes in the Supreme Court, "that may not make much difference." Rehnquist is himself a staunch conservative, so replacing him will not tip the close balance of the court. However, "if we get to the point that President Bush is replacing Sandra Day O'Connor or John Paul Stevens--then everything is in play, including, maybe, Lawrence," Wermiel adds. Lawrence was decided based on an interpretation of privacy laws that justices like Scalia don't subscribe to.
Wermiel cites Bush's November 4 victory speech, which eventually morphed into the phrase "I've earned political capital," he says. "I take that as [a nod that] the 'moral conservative right,' if you will, is going to be influencing Supreme Court nominations. There is no possible way that that is good news for the gay community."
Wermiel also notes that if moderate Republican senator Arlen Specter is named chairman of the Senate Judiciary Committee and if Democrats hold true to their word to filibuster any truly radically conservative judges, there will be at least a few checks on the extent of a conservative run on the court. …