Feminist theory states that we are all prisoners of our own biases and value system. Supreme Court justices are no different. Their majority opinions concerning the Texas sodomy law, affirmative action and abortion reveal a deep strain of East Coast elitism that is so pervasive that Justice Antonin Scalia recently accused some of his peers of taking sides in the culture war.
This tendency toward cultural bias was perfectly illustrated by the court's recent decision to strike down a Texas sodomy law. In that case, the majority ruled that homosexuals have a fundamental liberty interest and privacy right to be intimate in their own bedrooms. In other words, certain sexual acts cannot be criminalized simply because a majority of citizens consider it to be immoral.
Very good. But if you extend that logic to its logical outcome, than state laws against things like bigamy, adult incest, prostitution and same-sex marriage will all fall by the wayside. Justice Scalia responded unkindly to that implication. "It is clear from this that the court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed."
Justice Scalia ground his dissent in the notion that: 1) a majority of Americans find homosexual acts offensive and immoral; 2) The Texas sodomy law is "well within the range of traditional democratic action." By short-circuiting the law, the court effectively overruled the will of the people. This amounts to cultural engineering.
With two of the justices in their 70s and retirement imminent, President Bush must consider potential replacements. Appointees will be in a position to consider test cases that will almost certainly apply the logic of the Texas sodomy finding to legalize same-sex unions. That is to say, new appointees to the court will be in a position to either permit or deny this assault on our traditional value system. Upon this decision, the culture war turns.
Early frontrunners include Albert Gonzalez, the former Texas Supreme Court judge who presently serves as general counsel to President Bush. Gonzalez has wide appeal as an ideological moderate who also carries the possibility of further endearing the administration to Hispanic voters. All of which has the administration drooling because they know the election will be won in the suburbs and they don't want to seem intolerant. Just one thing: Gonzalez is anything but a cultural conservative and, therefore, ill suited to fight the culture war that is currently eroding family values and our traditional way of life.
A similar situation played itself out in 1980 when candidate Ronald Reagan indicated that he would fill impending Supreme Court vacancies with justices who shared the party's concern for eroding family values. The 1980 Republican platform put it succinctly: "We will work for the appointment of judges at all levels of the judiciary who respect traditional family values and the sanctity of innocent life."
So who did Reagan end up nominating to the highest court in the land? Justice Sandra Day O'Connor, whose appeal as a moderate and a female led the administration to overlook her record as a pro-choice advocate. In the 20 or so years since her appointment, Justice O'Connor has swung away from the conservative majority on crucial cases, including those addressing homosexual and abortion rights.
President Bush cannot allow history to repeat itself. The administration must deny the temptation to appoint Gonzalez on the basis of his appeal as a centrist. The Texas sodomy case makes it clear that conservatives are losing the culture war. Our values are being peeled back by a court that has no problem usurping the will of the people. Against this backdrop, it is imperative that Bush appoints a justice who will help restore those traditional values that are essential to our national life.