From our Department Of Unsurprising Things… The judge who issued a restraining order preventing Oregon’s Civil Unions law from taking effect, was a Bush appointee whose nomination had stirred up some controversy due to his views on the status of gay people. Emphasis below are mine…\n<\/p>\n
\nSmith’s Pick Stirs Gay-Rights Controversy<\/strong><\/a><\/p>\n
WASHINGTON—What once seemed like a slam-dunk nomination for the federal judiciary in Oregon could turn into a test of political wills for Oregon’s two senators, Republican Gordon Smith and Democrat Ron Wyden.<\/p>\n
Michael Mosman, the U.S. attorney in Portland, is Smith’s choice for a vacant district judgeship and is still regarded as a favorite of the Bush White House. But recent revelations of Mosman’s views on gay rights, first expressed in 1986, have delayed his selection and what otherwise would likely be easy Senate confirmation.<\/p>\n
…<\/p>\n
Mosman, 46, emerged as the top candidate in January after Ray Baum, a lawyer for Smith’s family business, withdrew. But controversy erupted in March, when Basic Rights disclosed Mosman’s role in a pivotal 1986 case, Bowers V. Hardwick.<\/p>\n
The group uncovered and presented to Smith two “bench memos” that Mosman had written as a clerk to Supreme Court Justice Lewis F. Powell Jr. Mosman urged Powell to uphold Georgia’s anti-sodomy law against a claim that police invaded a man’s privacy by arresting him in his home<\/strong>.<\/p>\n
Memos to court’s tie-breaker<\/p>\n
Mosman prepared the memos in March and June 1986, as it became clear Powell would be the court’s tie-breaking vote. He wrote that striking down the Georgia law would lead to an unwarranted expansion of privacy rights under due process.<\/p>\n
Such a ruling would leave “no limiting principle” against prosecution of other sex crimes such as prostitution, Mosman wrote. It also would jeopardize rights that society previously had reserved to heterosexuals<\/strong>.<\/p>\n
“Without belaboring the point, I am convinced that the right of privacy as it relates to this case has been limited thus far to marriage and other family relationships,” Mosman wrote to Powell. “So limited, the right of privacy does not extend to protect ‘sexual freedom’ in the absence of fundamental values of family and procreation.”<\/p>\n
Mosman has declined requests by The Oregonian to discuss the memos. But in a recent book about gay rights and the Supreme Court, Mosman is quoted as saying that his feelings about homosexuality were secondary to his concerns about the law.<\/p>\n
“The battle was really about . . . what direction the court was taking on due process,” Mosman said in “Courting Justice: Gay Men and Lesbians v. the Supreme Court.<\/p>\n
Mosman added: “The (sodomy) issue could have come to the court as an equal protection case and would have had a better hearing. I would have been more receptive to it.”<\/p>\n<\/blockquote>\n
…which is not to say he’d have been in favor of overturning the sodomy laws anyway. After all…having sex is a right that society had reserved to heterosexuals.\n<\/p>\n
\nFor Smith, the nomination could become a test of his credibility as an advocate for gay rights within the Republican Party. Smith won an important endorsement from Human Rights Campaign after supporting hate-crimes legislation, helping his re-election last year.<\/strong><\/p>\n
In a recent interview, Smith downplayed the significance of the Powell memos and suggested that given the opportunity, Mosman could explain himself to the satisfaction of critics.<\/p>\n
“This is a decision that was rendered in 1986,” Smith said. “Isn’t it possible that Mike Mosman could also have an evolving view on these issues? I think Mosman is an outstanding legal scholar and an extraordinary U.S. attorney for Oregon.”<\/p>\n<\/blockquote>\n
But let’s not lay this debacle entirely at the feet of the ersatz "gay friendly" republican. I think we all know by now that there is no such animal. But wait…there was a democrat involved in this too…<\/p>\n
\nThe stakes could be higher for Wyden. Although his party controls neither the White House nor the Senate, Democrats are regarded as the chief defenders of gay rights. If Wyden endorses Mosman, his decision could be second-guessed by colleagues, including a handful of Democratic senators running for president in 2004.<\/p>\n
Democrats have threatened to filibuster high-profile nominees, and they might be emboldened to take on others if they succeed, said Moore, the analyst. In that case, Mosman’s nomination also could be held hostage to political concerns.<\/p>\n
“It depends on what happens with the other filibusters going on,” he said.<\/p>\n
Wyden hopes to avoid a national controversy over the nomination, said Josh Kardon, his chief of staff. But first, the senator plans to meet with Mosman to discuss the concerns raised by Basic Rights and decide whether to support him<\/strong>.<\/p>\n
“Mike Mosman is someone Senator Wyden has supported in the past and someone he would like to support for the federal bench,” Kardon said. “But legitimate questions have been raised that require thorough consideration<\/strong>.”<\/p>\n<\/blockquote>\n
Well guess what…after "discussing" the concerns raised by the gay community with Mosman, Wyden went ahead and voted for him after all<\/a> …\n<\/p>\n
\n"President Bush made an excellent choice when he nominated Mike, and the Senate confirmed that decision with its unanimous vote," Smith said. "He has long served Oregon and the nation with distinction, and I have the utmost confidence that he will continue to do so on the District Court."<\/p>\n
"I am honored to have this chance to serve," Mosman said. "I have been impressed throughout this whole process with the fair-mindedness of everyone involved. I am grateful to the president for nominating me, and to Senators Smith and Wyden for their confidence and support."<\/p>\n
"Mike has worked hard to show his commitment to equal rights for all Americans," Wyden said. "I believe his sense of fairness and his long and outstanding experience as a prosecutor in our state will serve the District Court and Oregon well."<\/strong><\/p>\n<\/blockquote>\n