Note to Bush: No Biblical Bias for New Justice

The resignation of Justice Sandra Day O’Connor from the U.S. Supreme Court has revved up the culture war in this country to a fever pitch. With this being the first high court vacancy since 1994, the religious right is now hell-bent on reversing 32 years of freedom and progress for women, people of color, and lesbian, gay, bisexual, transgender and queer people. Caught in a culture war that he helped create, President Bush is now faced with his own campaign rhetoric — will his replacement of O’Connor unite Americans or further divide us?

For us LGBTQ people, our fear of a pre-Stonewall legal status is not unfounded. The revulsion some heterosexuals feel about the way we LGBT people engage in sexual intimacy will have a profound impact on our civil rights — especially on the issue of same-sex marriage — if O’Connor’s replacement also carries this personal bias onto the bench.

In reacting to O’Connor’s announcement, Joe Solmonese, president of the Human Rights Campaign, stated: “Justice O’Connor’s retirement is a clarion call to every American that our rights are in grave danger. The loss of Justice O’Connor’s moderate voice is a serious threat to gay, lesbian, bisexual and transgender rights, to women’s rights, and to protections for racial, ethnic and religious minorities. . . As President Bush and the U.S. Senate consider a replacement on the bench, they should abandon partisanship and seek consensus on a nominee who will protect every American fairly.”

However, objectivity and balance on the highest court in the land is not everyone’s goal, especially those on the right. “The notion that the president has an obligation to maintain some sort of artificial ideological balance on the court is patently absurd,” Ed Meese, who served as President Reagan’s attorney general, unabashedly told The Boston Globe.

Finding someone like Sandra Day O’Connor as a replacement will be like trying to find a needle in a haystack because so many of Bush’s cohorts — male or female, black or white — are social conservatives for whom the rule of law is not the U.S. Constitution, but the Holy Bible.

The revulsion some heterosexuals feel about the way we LGBT people engage in sexual intimacy will have a profound impact on our civil rights — especially on the issue of same-sex marriage — if O’Connor’s replacement also carries this personal bias onto the bench.

However, in upholding the constitution’s separation of church and state, O’Connor recently declared that it is unconstitutional to display the Ten Commandments in Kentucky’s courthouses.

O’Connor viewed the constitution as a living document. In her book Majesty of the Law, O’Connor depicts her judicial philosophy by stating, “It is an essential safeguard of the liberties and rights of people. It allows for the defense of human rights and the protection of the innocence. It embodies the hope that impartial judges will impart wisdom and fairness when they decide the cases that come before them.”

And with this philosophy and to the surprise of both Republicans and Democrats, O’Connor in many 5-4 decisions was the key swing vote on the bench.

The now 75-year-old native of El Paso, Texas, was selected for the Supreme Court in 1981 by President Ronald Reagan as the high court’s first female member. And not surprisingly, her confirmation was a 99-to-0 Senate vote that ended 191 years of the court a males-only club.

While we have come to know O’Connor as the voice of reason and moderation, many liberal feminists first feared she would be a Goldwater-style conservative and many conservatives feared she would be a radical feminist. However, O’Connor was neither.

But as someone who has proven that she can examine both sides of an issue without bias, it is imperative that our voices be heard in the debate of who will replace O’Connor. Our lives, and the lives of so many others, hang in the high court’s balance.

Eleanor Smeal, fomer president of the National Organization for Women, said in a written statement: “I knew then that O’Connor, although a conservative voice, would be one who would not permit the elimination of women’s fundamental rights, including the right to privacy.”

O’Connor’s voice of reason and moderation also extended to people of color and LGBTQ people. For example, in Grutter v. Bollinger upholding the University of Michigan Law School’s affirmative action program, O’Connor wrote:

Justice Powell emphasized that nothing less than the nation’s future depends upon leaders trained through wide exposure to the ideas and mores of students as diverse as this Nation of many peoples. . . We have never held that the only governmental use of race that can survive strict scrutiny is remedying past discrimination. . . Today we hold that the Law School has a compelling interest in attaining a diverse study body.

And in June 2003, O’Connor ruled in favor of Lawrence v. Texas, striking down the Texas law that criminalized sexual relationships between consenting adults in a 6-3 decision, thus signaling a shift in protecting the private lives of lesbian, gay, bisexual and transgender people in this country.

All this is not to say that O’Connor was perfect. While she has been the voice of reason and moderation on the bench, she also voted with the majority, for example, to shut down the recount of ballots in Florida in 2000 that gave Bush an unearned presidency.

But as someone who has proven that she can examine both sides of an issue without bias, it is imperative that our voices be heard in the debate of who will replace O’Connor. Our lives, and the lives of so many others, hang in the high court’s balance.

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