Lawrence Lawyer: Obama Best For Supremes, Gays


Taxes, health care and energy dominated the presidential debate this week. As important as those domestic topics may be to our nation’s future, voters must also remember the President’s power over the Supreme Court.

We’ve already stressed the scariness of John McCain’s conservative judicial vision – one he reiterated during Rick Warren’s Saddleback Forum – but it’s a point that deserves to be hammered. Paul M. Smith definitely agrees.

Smith, the lawyer who successfully argued 2003’s Lawrence v. Texas, which essentially dismantled sodomy laws, wrote an op-ed this week highlighting the absolute necessity of considering the candidate’s Court choices.

With his commitment to less ideologically strident judges, Barack Obama, writes Smith, is the only option for LGBT voters and their allies:

We won Lawrence 6-3, but one of those who supported us, Justice O’Connor, has been replaced by the strictly conservative Samuel Alito. So the Lawrence majority is very likely reduced to 5-4 already. And one or more of those in the majority are likely to leave the court in the next four years.

If those departing justices are replaced by John McCain appointees, he has made it perfectly clear where they will stand. [He favors] justices like the court’s current very conservative bloc – Chief Justice Roberts and Justices Scalia, Thomas and Alito.

President Obama, by contrast, would be likely to appoint justices like the four whom McCain rejected. When asked at Saddleback which justices he would not have appointed, he mentioned Justices Thomas and Scalia.

Would a McCain court really overrule Lawrence? It’s hardly a long shot. The case as written by Justice Kennedy is closely tied analytically to the constitutional right to choose to have an abortion. If the latter goes (as it almost surely would if McCain wins) the Lawrence case would be left hanging by a thread.

The days when Republican presidents appointed surprise moderates or progressives are now past. So as a community, we have every reason in the world to support Sen. Obama this year. We have a chance to see a president who has championed our rights his entire career. It’s not a chance we should pass up.

The decision really comes down to whether one prefers a judges who reads the Constitution or one who reads a specific party platform.