Online Chats

Transcript: July 12, 2005 • 1:30 - 2:00 p.m. EDT

Chat with Christopher Labonte, HRC's Legislative Director, and Lara Schwartz, HRC's Senior Staff Counsel.

chris : We wanted to thank everybody for being here today to discuss the future of the Supreme Court (SCOTUS) with Sandra Day O'Connor's retirement. Both Lara and I look forward to your questions and our discussion.

jcnur05 : Q: Now that the president is closer to picking someone to fill the vacancy, what will this mean for the fight for equality?

chris : A: Thanks for your question. The stakes could not be higher for the gay, lesbian, bisexual and transgender community. The Supreme Court is closely divided, with decisions on GLBT rights, reproductive choice, affirmative action, and religious freedom often being decided by votes of 5 to 4 justices. It is critical that our community learn about the issues and how we can be involved in the nomination process.

ljt236 : Q: Is there one "litmus test" issue, other than marriage equality itself, that would be a reliable indicator of how a nominee would be likely to vote on general issues of civil rights for bglt people?

lara : A: It is important to understand that even if a nominee does not have an explicit record on GLBT issues, his or her judicial philosophy is still important. Judges who believe that the Constitution must be read narrowly, to the exclusion of basic rights and liberties such as choice and privacy, are unlikely to look favorably upon GLBT people's claims for equality.

drmowrey : Q: question. I didn't know there was a rumor for a 2nd retirement. Is the retirement who we think it is already?

chris : A: I'm not sure who you mean :-)

chris : Actually, if you're referring to Rehnquist...that is certainly the rumor that has been circulating in Washington since the end of the term.

StephenVA : Q: How soon do you expect W to name a nominee?

chris : A: The ball is in the White House's court right now. We heard this morning that Republican hill aides are expecting a nominee the week of July 26th. That being said, it could come any day now....or the President could wait until much later in the Summer to lessen the amount of time a nominee is subject to scrutiny by the Senate and the American public.

janthompson : Q: I am from Michigan where both our senators are committed to affirming only justices who will uphold individual rights. There is no need to harass them, so what else can I do?

lara : A: First of all, you can thank your senators for their commitment to equality. Remember that they are likely to receive correspondence from opponents of equality, and your support still matters. Additionally, you can help educate friends, community, and family about the importance of selecting a fair-minded justice. Write a letter to the editor of your local paper explaining how the choice of a justice can affect your life. And write to friends in other states encouraging them to contact their senators and raise their voices in support of justices who will honor our Constitution's guarantee of equality.

David_Murray__Syracuse : Q: Hi all. I read recently about 3 groups taking the lead on this fight, including PFAW. It seems this would be a great time pool resources & collaborate with other groups, but that's always proven easy to talk about & hard to implement. What is HRC going to do to really leverage its resources with all the other fair-minded groups who are involved?

chris : A: We have been working with coalition partners like People for the American Way, Alliance for Justice and the Leadership Conference on Civil Rights on this nomination, as well as nominees the President has named to lower courts -- like Bill Pryor. We are very well coordinated with those groups as well as other groups within the larger coalition and are working with sister GLBT organizations to organize our community, particularly in key states.

EricS : Q: I have read that pres bush may is asking about a concensus justice. Is this just hooey?

chris : A: The President has as duty to engage in true consulation with the United States Senate, under the terms of the Constituion. We sincerely hope he will nominate a consensus nominee -- and one that can engender the support of a bipartisan group of Senators and the trust of the American people to be a fair minded and independent jurist.

sahra : Q: Who are the potential nominees for the vacancy?

lara : A: Conventional wisdom and inside-the-beltway "buzz" led to the development of a so-called "short list" of people who could be considered to fill a vacancy. This group includes sitting federal judges such as Michael Luttig and Michael McConnell, along with key Administration figures such as Attorney General Alberto Gonzales. Because Justice O'Connor retired, rather than Chief Justice Rehnquist, whose retirement many people anticipated, current thinking is that the President might take a closer look at some of the women on the "short list," including Edith Jones and others. What we do know is that the president has a record of appointing extremely conservative lower-court nominees. Among all of his nominees to the courts of appeals, not a single one has publicly expressed support for a woman's right to choose. Several have explicitly anti-GLBT records, and others have demonstrated hesitance to enforce our nation's civil rights laws. During his 2000 and 2004 campaigns, the president expressed a preference for judges in the model of Justices Scalia and Thomas-- both outspoken opponents of constitutional protection for GLBT Americans.

Anna_M. : Q: I've heard people describe Alberto Gonzales as a "moderate" choice for the Court lately. Is that really true? I'd always thought of him as a hard-line conservative.

chris : A: Gonzales is largely undefined. The American public, through their Senators, deserve to know answers to many questions about his views that remain -- such as whether or not he'd abide by the court's decision in Roe and in Lawrence, a critical decision for our own community.

chromo_homo : Q: When it comes to Supreme Court nominees, I didn't realize that there were "key states". Please explain.

chris : A: While all 100 Senators are key, Senators on the Judiciary Committee are the first ones to review his record in a substantive way. We want to make sure those Senators ask the right questions and examine his record completely. We are also focusing in moderate Republican and Democratic Senators -- to make sure they understand a nominee's record, how it impacts their GLBT constituents and understand the gravity of confirming a nominee that impacts all American's lives for generations to come.

elena : Q: I've heard commentators discuss how the Court has been more contentious (i.e., narrowly decided decisions) in the past couple decades. Is there any evidence that the decisions they have made have been more narrowly decided than those of previous Courts?

lara : A: It is true that some of the most "hot-button" issues have been decided by close margins. For instance, on the last day of the Court's term, the Court issued two 5-4 decisions regarding the legality of posting the Ten Commandments on government property. Justice O'Connor, who retired shortly after, was a critical vote in both cases. Lawrence v. Texas, the 2003 case that finally removed the criminal brand from GLBT Americans, was also narrowly decided-- with 5 justices in the majority, Justice O'Connor concurring (agreeing with the majority for different reasons), and three justices dissenting. Cases on affirmative action, capital punishment, and reproductive choice have resulted in similarly close votes. So it is not an overstatement to say that the Court has a very delicate balance and that one new justice can make a huge difference to the rights and liberties that matter to us the most.

scotuswatcher1 : Q: I am so glad that HRC is working to stop anti-gay justices from being on the Supreme Court. What can I do to join in this fight?

chris : A: Thanks. For starters, check out www.hrc.org/supremecourt to see the latest information and see what you can do to help. Make sure you talk to your family and friends to ensure they understand the importance of a fair and independent judiciary. Be on the lookout for events that may be happening in your neck of the woods.

Pat_Kelly : Q: To what degree will the debate be affected by the recess in August?

chris : A: Well that's a question that Senators and their staff are asking every day :-) At a press availabiltiy at the White House this morning after meeting with the President, Senator Arlen Specter (the chair of the Judiciary Committee) remarked that while August hearings are possible, it is more likely to happen after the Senate returns from the Labor Day recess.

Marissa_in_Ithaca : Q: I am concerned that our action plan to insure that a nominated justice preserves glbt civil rights is rather reactionary, because it seems like the primary strategy is to wait to see who is nominated, and to then mount defenses to block a hostile nomination. It sounds like anti-glbt groups are directing Bush's attention towards candidates they would like to see nominated. Is our side taking such pro-active steps as well? If not, why not?

lara : A: Our community and the coalition of civil rights groups of which HRC is a part has been active and outspoken in encouraging the President and Senate to consult and arrive at a consensus nominee. Our nation's history is full of examples of such consultation-- President Clinton consulted with then Judiciary Committee ranking member Orrin Hatch (R-UT) in selecting Justices Ginsburg and Breyer. We continue to promote this sound, constitutionally required, and prudent course of action. You are right that anti-GLBT groups are now claiming that Bush "promised" them a justice like Scalia or Thomas. But the president needs to select a justice worthy of all Americans-- not cave in to extremist groups.

wendee : Q: What if he doesn't nominate someone who is a consensus nominee; does he have the power to do that?

chris : A: Let me say this...the Constitution requires the President and the Senate to engage in advice and consent. The President has the power to nominate any individual he chooses. After the nomination, the ball is in the Senate's court (no pun intended). We sincerely hope that the Presidnet will nominate a consensus candidate.

Kelly_B : Q: I just joined in so I hope this question hasn't been asked, but what are the realistic chances of getting someone into office that will protect our rights?

chris : A: Hello, Kelly_B. One must look at the President's history in chosing lower level nominees for the Federal Courts to make an educated guess on who he may chose for the SCOTUS. Not one of his federal court appeals judge nominees has a public statement in support of choice...you do the math :-)

gertrude : Q: Do you think that it's possible that a court decision on gay marriage, or even seeking to overturn Lawrence v Texas could reach the Supreme Court in the next 10 years?

lara : A: One thing we know about our court system-- justice delayed is justice as usual! Seriously-- preparing, briefing, arguing, and moving a case up through the court system takes years. Lawrence and Garner were arrested in 1998, and the Supreme Court ruled in their historic case in 2003. Most marriage litigation is taking place in the states-- where marriage laws are made. As for Lawrence, a direct attack would be hard to conceive of. However, the principles underlying Lawrence-- in particular the Court's Due Process cases on privacy and liberty-- could be severely undermined in the next few years. Challenges to abortion laws that invite the Court to revisit-- or narrow, or even overrule-- Roe v. Wade pose a threat to Lawrence, which is part of the same line of cases. If the Court should rule that the right to privacy is no longer to be protected, then Lawrence-- and the promise of liberty that it holds for GLBT Americans-- could be in jeopardy.

joanna : Q: what are our options if he does nominate a conservative

chris : A: We have to make sure our messages are heard, our community realizes the gravity of the situation and we need to work hand-in-hand with our coalition partners within and outside of the GLBT community. HRC will be working to ensure our messages get out and our community is engaged -- once a nominee is named, be on the look out for specific ways in which we can help shape the debate.

gertrude : Q: I love getting the HRC scorecard in the mail every year. Will HRC be scoring this vote?

chris : A: Thanks, Gertrude. Glad you like it and it's able to help you decide who to vote for every November based on their records on GLBT community. It's too early to determine if we are going to score this vote...since we do not know who the nominee will be and don't want to be premature. We have scored judicial nominations in the past (most recently Bill Pryor). Thanks for the question.

janthompson : Q: Going back to Marissa-in-Ithaca's question, do we have any specific nominees to suggest rather than just saying a "consensus candidate?"

lara : A: There are obviously many distinguished jurists on the courts of our country, both federal and state. We have established criteria for evaluating nominees to the bench, and they are: o Only nominees who possess exceptional intellectual ability, distinguished experience in law, and a temperament that would enable them to make decisions fairly and with an open mind should be confirmed for lifetime appointments to the bench. HRC believes that an assessment of temperament worthy of lifetime appointments should include the following: § demonstrated commitment to full equality under law for gay, lesbian, bisexual and transgender Americans; individuals living with HIV and AIDS; women; people with disabilities and racial, ethnic, and religious minorities § demonstrated commitment to the constitutional right to privacy and individual liberty, including the right of two consenting adults to enter into consensual intimate relationships § respect for the constitutional authority of Congress to promote equality and civil rights and provide statutory remedies for discrimination and violence § sophisticated understanding of and commitment to the separation of church and state and the protection of those citizens with minority religious views § respect for state legislatures' attempts to address discrimination and violence based on sexual orientation, disability, race, ethnicity and other factors through carefully crafted legislation that meets the requirements of the Constitution

chris : Gosh, I wish i could type much quicker. Bear with me.

Font : Q: Do you think it is White House's strategy to wait a few weeks so that Bush's nominee would not be a target for opposition groups while Congress is on recess in August? If so, what pro-active measures can we take?

chris : A: We have heard rumblings that this could be why he will wait until later on in the summer to nominate. Stay informed...contact your Senator while she or he is in town for the recess, make sure your friends are aware.

ljt236 : Q: Is it your sense that the Democrats would be prepared to filibuster the nomination of a strict constructionist?

lara : A: Honestly -- we don't know. We agree with the bi-partisan group of Senators that the filibuster is an appropriate tool to assure our courts are fair and balanced. For lgbt people, any potential nominee that does not agree that our Constitution is a document that protects individual rights such as liberty and privacy would not pass our criteria, and we would make that fact known. But there will be no need for a filibuster if President Bush does what presidents before him have done – seek the advice of Senators from both parties before making a nomination, and choose a mainstream nominee that we can trust to protect our most important rights and freedoms.

Detroit__MI_-_Blue__in_theory : Q: I'm pleased to see so many progressive groups mobilizing, but how effect can we really expect to be? Nominating a Supreme Court judge is the prerogative of the president in office. There are only 100 votes in the Senate, and the majority of those are Republicans. Short of encouraging your Democratic senator, if you have one, what are options?

chris : A: We cannot take anything for granted not can we predict how any Senator will vote on the nomination...some GOP moderate Senators have voted against some of the President's previous nominees. We need to work on all of them -- including the gang of 14 that saved the filibuster.

georgenmichigan : Q: Any speculation on who is truly on W's short list?

chris : A: Short answer -- only the President knows. Dozens of names of possible Supreme Court nominees have been floating around Washington. We have amassed a wealth of research on individuals believed to be on the “short list” – including Judges Michael Luttig, Michael McConnell, Emilio Garza, Edith Jones and Alberto Gonzales.

Pat_Kelly : Q: There seems to be an idea floating around that more support could be garnered for a nominee with a legal background, but who is not a judge. Would this affect HRC's consideration?

chris : A: Regardless of the nominee's current occupation, our criteria remains the same. HRC's established criteria for evaluating nominees to the bench are nominees who possess exceptional intellectual ability, distinguished experience in law, and a temperament that would enable them to make decisions fairly and with an open mind should be confirmed for lifetime appointments to the bench. Our website includes our more specific criteria...including their views on established law, like Roe and Lawrence.

chris : We're answering as many questions as we can...but please continue to send your questions in...

Pat_Kelly : Q: Is it safe to say that a litmus test for many of the issues involved might not be the right to choose or marriage equality, but rather the nominee's views in regards to the right to privacy?

lara : A: Good question. The right to privacy and liberty inherent in the 14th Amendment's guarantee of substantive due process was the underlying rationale in both the reproductive choice line of cases, as well as Lawrence v. Texas, the case in which the remaining state sodomy laws were struck down. A demonstrated commitment to full equality under the law for lgbt people, individuals living with HIV and AIDS, women, people with disabilities, and racial, ethnic and religious minorities is one of our criteria. And I posted a full listing of our criteria in an earlier answer (I could repeat it, but I fear that's a little lengthy), and any nominee's views will be measured against those by HRC.

chris : Many of you have asked a question about the use of the filibuster for the Supreme Court, so allow me to combine the questions and answer it.

chris : We agree with the bipartisan group of Senators that the filibuster is an appropriate tool to assure our courts are fair and balanced. But there will be no need for a filibuster if President Bush does what presidents before him have done – seek the advice of Senators from both parties before making a nomination, and choose a mainstream nominee that we can trust to protect our most important rights and freedoms.

EricS : Q: Might bush put forward a moderate now and later put forward a conservative when Rhenquist leaves?

chris : A: All things are possible...he could chose to go this route. I have heard that some of his advisors have floated this...but there is no way to tell. The religious right has gone after those who they believe are too moderate, so the President may need to thread the needle to satisy that portion of the base without angering those in the middle who make up the majority of this country. Regardless of what he choses, HRC will work to ensure that any nominee is fair and independent.

lara : We have seen some early indications that some wish to discourage a full and rigorous examination of any nominee to the Supreme Court, but we disagree. The Senate has a duty to conduct a thorough, independent review of each nominee, and not just be a political rubber stamp for the Administration's selection. This balance of power keeps our courts independent from partisan politics, and limits the power of any politician or political party. With nine justices sitting on the bench of our nation's highest court, ruling on the most critical legal questions of our time, its axiomatic that each nominee should be subjected to the most rigorous scrutiny and meet the stringent standards.

hotceoguy : Q: How likely is it that Bush can count on a Republican majority holding together to affirm a radical conservative nominee? or does he have to fear the need to move to the middle to get a nominee affirmed?

chris : A: I don't think that the President can count on that but he'll work hard to make sure they don't split -- if past history is any indicator. As you recall, the Federal Marriage Amendment split the Republicans more than it unified them...this could have the same impact.

wendee : Q: What impact will these new appointments have on the gay community if Bush is able to appoint right wing conservatives?

chris : A: The stakes couldn't be higher. A new makeup of the court could reverse gains that we have made...this means decisions like Lawrence (keeping the government out of our bedrooms and branding us as criminals) and Romer (guaranteeing gay and lesbian Americans equal protection) are at risk.

chromo_homo : Q: Is there any reason to believe that, although his lower court nominees have been rather reactionary, the President understands that a Supreme Court nomination is a whole other ballgame, and that he might think it deserves a different consideration?

lara : A: Of course we hope that he will, especially given the role that Justice O'Connor played on the Court. Unfortunately, we've not seen any particular indication that might be his plan.

elena : Q: i also heard a rumor that maybe O'Connor will be asked to serve as chief justice once Rehnquist retires. thoughts?

chris : A: yes, i've heard the same rumors. all indications are the sandra day o'connor retired for very personal reasons. having said that, all things are possible.

chris : thanks, all...we have about 5 more minutes and will try to get to everybody as quickly as we can.

elena : Q: Chris and Lara, thank you for doing everything you do to secure the rights of LGBT folks and their families.

chris : A: Thanks...but it's not us, it's you, your friends and your family that will make all the difference in the world. We are so fortunate to have such a great membership and work with such talented people at HRC and throughout the GLBT community...thanks for all that you do. Check out www.hrc.org/supremecourt. We need you too!

chromo_homo : Q: Do you think there is actually a chance that there will be any open discussion of opinions on LGBT rights during the confirmation process?

chris : A: We will certainly work to ensure that our issues are addressed, reviewed and researched during the confirmation process. We are working with our allies on the Hill to make sure the Constitutional underpinnings of our rights are examined through the process.

lara : Many people have contacted us to ask what difference it makes if a chief justice retires. If Chief Justice Rehnquist were to retire, the President would have two options: he could nominate a current sitting associate justice for the chief justice seat, or he could nominate a chief justice from outside. Many people have speculated that President Bush might be interested in nominating to promote a current justice, and then nominate two others -- if that were to happen (and now I acknowledge that I've gone a long way down the path of speculation) the President would have three nominees. By any standards, if he nominated three and they were confirmed, that would be "packing" the court.

laura : Q: Does it take a 2/3 majority to approve the nomination or just a simple majority?

chris : A: That's a tricky question. If there is no filibuster of the nominee, all that is needed is a majority of the Senate or 51.

chris : Thanks so much for participating! We are sorry that we couldn't answer all of your specific questions but tried hard to make sure we addressed all of the issues that were raised by the questions. We hope to more of these in the future -- please send feedback of this chat to field@hrc.org.

Lara : Good-bye everybody, and thanks for joining us. Lara

chris : all the best to you!

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