October 7, 2005

LGBT groups are wary of Miers

She supported equal rights in 1989, but also backed the Texas sodomy law

by Eric Resnick

Washington D.C.--With little record and her mixed experiences with lesbian, gay, bisexual and transgender people, those concerned with GLBT rights are greeting President Bush?s nomination of Harriet Ellan Miers to the U.S. Supreme Court with caution and concern.

Bush announced Miers? nomination about an hour before his other nominee, Chief Justice John G. Roberts, took the helm of the court on October 3.

Roberts replaced conservative Chief Justice William Rehnquist, who died September 3.

Miers is nominated to fill the seat of retiring Justice Sandra Day O?Connor, a Reagan appointee who has developed over the years into a more moderate justice on social issues, minority rights and equal protection.

In 1986, O?Connor joined a majority on the court in upholding sodomy laws in the Bowers v. Hardwick decision. But two years ago she also joined a majority saying that decision was a mistake, in Lawrence v. Texas, which struck all state sodomy laws.

She also wrote a separate concurring opinion saying that gays and lesbians are protected under the Fourteenth Amendment of the U.S. Constitution.

On social, ?hot button? issues, O?Connor was often the deciding vote on the progressive side. In most 5-4 decisions over the past ten years, O?Connor was in the majority, including 13 times last year.

Hence, it is her seat on the court that has brought out the cultural warriors of both the left and right, even more than did the nomination of Roberts.

A scant record

Miers? record is scant, making her judicial philosophy a mystery to all interested. She has never been a judge, nor participated in legal academia, nor authored any articles in legal journals.

Those advocating LGBT equality and those opposing it are reacting to the nomination with initial skepticism.

The virulently anti-gay Operation Rescue says it will not support Miers? nomination. Archconservative Sen. Sam Brownback, a Kansas Republican, said he might vote against her.

But this is little comfort to LGBT advocates, who have the same quandry: She?s an unknown.

The National Gay and Lesbian Task Force reserved judgment, instead issuing a plea to the White House to be more forthcoming with her record than they were with the Roberts nomination.

?The administration and Harriet Miers have a duty to tell the American people about her role in and views on the numerous legal matters she has had any responsibility with related to her several positions in the executive office of the president,? said Eleanor Acheson, NGLTF?s director of public policy and government affairs, ?in addition to the nominee?s obligation to make public her views on the constitutional and other legal issues raised to now-Chief Justice Roberts.?

?That?s the $64 million question for us,? said Lambda Legal director Kevin Cathcart. ?Does Harriet Miers possess a clear commitment to equality and fairness for all Americans, including LGBT people and those affected with HIV, and a judicial philosophy that will make that commitment real??

Those sentiments and calls for thorough examination were echoed by the National Black Justice Coalition.

Helped select Bush judicial nominees

Miers, 60, has never married and has no children. She has been in the Bush administration since 2001, serving first as White House Staff Secretary, then Deputy Chief of Staff for Policy. She is currently White House Counsel.

At the White House, Miers helped select the president?s judicial nominees. Most of these are anti-gay, including the controversial William Pryor, Janice Rogers Brown and Priscilla Owen--all confirmed through a Senate deal to preserve the judicial filibuster earlier this year. She also advised Bush on the federal marriage amendment.

While Bush was the governor of Texas, Miers chaired the state?s lottery commission. She was also counsel to his gubernatorial campaign and his first presidential campaign.

Miers practiced law before that, working her way to managing partner in the 400-attorney Texas firm Locke-Liddell & Sapp, LLP, where her clients included Bush and corporations.

Miers was distinguished as the first woman in Texas to lead a firm that size and the first woman president of the Texas bar association.

Answered gay questionnaire

Perhaps the most insight into Miers? philosophy is in her campaign for Dallas City Council in 1989. She served a single two-year term before deciding not to run again.

During that campaign, Miers answered a questionnaire from the now-defunct Lesbian-Gay Political Coalition of Dallas, which the Human Rights Campaign has obtained and distributed.

Miers said she supported the Texas sodomy law that was overturned by the high court in Lawrence, 14 years later.

She also said she would ?consider? city ordinances prohibiting housing and employment discrimination based on HIV status.

?I prefer a legislative solution to the issues raised by these questions,? she wrote.

To a question asking if the city of Dallas should be able to discriminate against city employees by sexual orientation, she responded, ?I believe that employers should be able to pick the best qualified person for any position to be filled considering all relevant factors.?

But Miers also told the Dallas group that she believes gay men and lesbians should have the same civil rights as non-gay men and women. Then she declined the group?s endorsement.

A handwritten note attached to the candidate form says, ?My personal conviction is not consistent with homosexual lifestyle.?

As a member of Dallas city council, Miers appointed an openly gay attorney to the Dallas Community Development Block Grant Board.

A strict constructionist

Another place to look for Miers? beliefs is her church.

Miers is a devout member of the Valley View Christian Church in Dallas, which is part of the ?Restoration? movement, the goal of which is to restore authentic first-century Christian faith and practice. The church?s website makes no mention of homosexuality.

One indicator of her stance is Bush?s campaign promise to appoint judges like Antonin Scalia and Clarence Thomas, both of whom were in the minority in Lawrence and have extremely anti-gay judicial records. Neither justice believes in a fundamental right to sexual or reproductive privacy.

Since her nomination, Bush has been trying to reassure Christian political groups that Miers is really a conservative they can support.

During an October 5 press conference, Bush said Miers is a strict constructionist who shares his philosophy of what a judge should be.

Strict constructionists want the Constitution interpreted as it was when it was written. They generally oppose rulings that expand constitutional protection based on sexual orientation and gender identity because neither are mentioned in the document. Strict constructionists are seen as hostile to civil rights protections for all minorities.

?I know her well enough to be able to say that she?s not going to change, that 20 years from now she?ll be the same person with the same philosophy she is today.? added Bush--a reassurance to his political base that she will not disappoint them like Justice David Souter, nominated by Bush?s father, does.

HRC?s director Joe Solomonese suggested there is a ?possibility that she is more fair-minded than our opponents are hoping.?

On her responses to the Dallas gay questionnaire, Solomon noted, ?We will be closely watching how the White House responds to this news, and it will be a good test of whether the extreme right wing has hijacked the process on nominating a Supreme Court justice.?

The president said he wants Miers confirmed by Thanksgiving.

The high court is scheduled to hear an LGBT-related case two weeks later, on December 6. That case, Rumsfeld v. Forum for Academic Rights, is about the Solomon Amendment, which cuts off all federal funding to colleges and universities that keep military recruiters off campus to protest the military?s ban on openly gay servicemembers.

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