Bil Browning


Filed By Bil Browning | July 22, 2005 4:18 PM | comments

Filed in: Marriage Equality, Politics

I well remember in 1990 or so reading sophisticated and accurate analysis in the New York Times and Foreign Affairs Quarterly about events transpiring in the Soviet Union, especially the coup against Gorbachev. Being an intelligence officer with the highest clearances, I then also was reading classified analysis produced by Air Force Intelligence about the same events. One didn't have to get through too many paragraphs of the latter before one understood that the Air Force Intelligence mindset was so afflicted with spy vs. spy mentality, that they were completely missing the reality of the coup. Instead, they were holding tight to an absurd theory of conspiracy that the West was being tricked. The New York Times had it right; the conspiracists, however, were so imbued in their suspicions that they had lost the ability accurately to inform.

While I don't know enough about Roberts, and credit the need to analyze the reality, much of what I am reading reflects the mindset of the writers, while shedding far less light on the mindset of Roberts.

Specifically, (and here I pause to emphasize that I did not vote for George Bush and could not remotely be considered a supporter) I remind all that Bush was not so bent on destroying gaydom that he didn't have openly gay high level appointees (he did), a nondiscrimination policy that continued to have sexual orientation in it (he did), or a public willingness to entertain civil union for same sex couples (he did). In that latter public willingness, he exceeded some 90% of the entire spectrum of political leadership in Indiana. Adequate? Obviously not. Embracing the far right agenda on gays? Obviously not.

I am amused that the Honorable Mr. Gary Welsh, who renders an excellent service in his blog, holds Roberts' feet to the fire for a formal affiliation with the Federalist Society, a society in which Roberts had no membership, while Gary himself HAD been a member! According to the Washington Post, Roberts was not recalled as ever attending any of the Society's meet and greets, and had only spoken to the society. Gary questions the fact that Roberts had not disabused anyone of the notion that he was member, though Roberts seems, within a day or two of the rumor gaining currency, to have rushed to do precisely that. And my friend Marla, whom I love, truly, says he is likely to be lying, when it is his integrity upon which friend and foe alike seem to agree. (I do think highly of both Gary and Marla)

The question is: What kind of a world does each of us see? My understanding of the world is that acceptance of gays increases with education and exposure. By all accounts, Roberts has a passion and an excellence in the law, which are necessary to be able to achieve the high honors at Harvard undergrad and Harvard Law with which he emerged. According to the Times, he is quoted as saying he could have argued for the other side of every case he tried, which is a lawyerly spirit that I don't think Antonin Scalia quite shares (though I could be wrong.) By all accounts, his friendships in Washington are wide-ranging, and follow no ideological or partisan path, which leads me to suspect (yet to be verified) that healthy, functional gays are not foreign animals to him.

Perhaps I am incorrect, but it seems to me that even a textualist would find the equal protection clauses and religious freedom clauses to be compellingly clear when the time comes to discuss gay marriage. Which is why the religious right HAS to fight for an amendment, whatever the make up of the court.

Bush is not up for re-election... his eyes are on history.... and while he is supported by the extreme religious right, in his adherance to nondiscrimination policy including sexual orientation, his appointment of open gays, and his willingess to entertain civil union for same sex couples, he is clearly not OF the extreme religious right. Whatever his nominee believes, no one (religious right or progressives, with whom I am more closely allied) should make the mistake of transferring to him their own views of the world. Under the circumstances, all have reason for suspicion. All have reason for hope.

For this reason, it is critical for our allies to press their questions with vigor and to pay close attention in the press to what emerges in the way of fact, rather than mere speculation, and in the hearings to the actual stated views of the nominee.

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AUTHOR: Tracy Elliott

DATE: 7/22/2005 05:53:53 PM

I couldn't have said it better myself. I hate that!

AUTHOR: Anonymous

DATE: 7/22/2005 07:06:08 PM

Chris,I have no trouble admitting I once belonged to the Federalist Society--I'm being honest. My views have evolved substantially over the past 15 years as has my acceptance of whom I am. My involvement with this organization, however, was minuscule and more remote than Roberts' participation. It is simply disingenuous for him to now separate himself from a group of people he has lived and breathed with in D.C. legal/political matters for the past 20 years. I'm not going to attack you for lying to your military superiors about your own sexual orientation 20 years ago; otherwise, you would not have been allowed participation in the military let alone a security clearance. I fully appreciate your circumstances and understand why you did so. Likewise, it is not fair for you to criticize me for my past participation, albeit very small, in the Federalist Society, while giving Roberts a total pass.Gary Welsh

AUTHOR: Marla R. Stevens

DATE: 7/22/2005 08:25:39 PM

My comment about lying was intended to be limited to the administration (the "has no recollection" line was so, well, cinematically 'as spoken to Jack Ryan by his C.I.A. directorate head counterpart'), thinking no one could believe, as often as I've said it on this blog in the last few days that I dispute the Judge's personal integrity, intelligence, legal talent, etc. I don't disagree with your take on some of the arguments made here, though, particularly that we ought to be careful to seek the real Roberts uncluttered by our various personal biases.However, neither change his record. Please, if you disagree with my take that it is typical of a Federalist Society member and, in particular, that it is exactly what Shrub says he was looking for when he said, "I do have an obligation to think about people from different backgrounds, but who share the same philosophy, people who will not legislate from the bench.", meaning Borkish strict constructionism, enlighten me, particularly on the frog/Endangered Species Act case.While you're at it, I'd love your take on the post on July 20th Julien's List entitled "Reprise: Question Nominee on Philosophy" found at has a somewhat different take on Shrub's line I quoted above.


DATE: 7/23/2005 11:58:57 AM

This thread leaves me musing whether "reliable sources" are those whose past record, examined in the light of subsequent developments and revelations has proved accurate and informative, or those we can rely on to say what we want to hear.

AUTHOR: Chris Douglas

DATE: 7/23/2005 04:59:27 PM

Gary, I don't think what I said amounted to criticism of you. But my observation remains that Roberts apparently knows specifically that he never took the simple but symbolic step of paying $50, nor is there any report (yet) that he attended their meetings other than as a speaker. As one who has addressed a few meetings in my life, I can attest that speaking to a group in no way signals consistent philosophy, much less membership.In fact, I think in 1996 Marla observed to me, while I was yet in the closet, that I had an obligation to address (uninvited) the Republican Platform Meeting in the South Bend.... which I did, scared to death. (They looked amazed.... like a talking Platypus had stumbled into their meeting...) I'm sure were the Republican Caucus, for instance, to invite Marla to speak,she would jump at the chance, and I at the chance to listen!Bart Peterson addressed Lambda Legal (a year or two before he added sexual orientation to his nondiscrimination policy), but to my knowledge, Peterson (for instance) is neither gay nor did he acknowledge sympathy with all the various goals of Lambda. By all accounts, Roberts has been swimming in the legal mileau (sp?) for his whole life.... well... since undergrad anyway... floating in the Washington legal pool for a decade or two... with friendships and legal and professional associations across the spectrum.... I'm giving Roberts no pass on anything, but with regard to this particular Federalist Society charge, pending more information, its hard at the moment to come to a verdict other than the British "not proven." I made no criticsm of your membership in the Federalist Society; it was the juxtaposition of a past member of the Society criticizing Roberts, who was no member, that was amusing in an affectionate way. I do believe it is unhelpful to rush to judgement beyond that which the evidence offers. (I note that you did so again in your characterization of my military service..... You conclude that I was involved in lying to my military superiors... I was not.... and then you decline to attack me for that which I had not done. Therein lies the true complexity of life and personal development.... At that time, I was still trying to figure out who I was, and in no position to lie to anyone about anything.)The population has come to embrace nondiscrimination not because the bigots have died off (though, with time, that is indeed helpful!) The change in public support for gays over the last two decades comes as much from people of one opinion shifting to another based on education on the topic and exposure in their personal lives. If people are openminded, we can work with them, whatever their opinions about us might have been before. With regard to Roberts, I believe we still don't know. By all accounts, he is reported to decline specifically to employ an over-arching judicial philosophy ala Scalia or Thomas. To the contrary, it seems to be his position that it is the law and the facts, case by case, that matters. That isn't necessarily positive, but isn't necessarily negative either. Marla, with regards to thoughts about the Califoria frog, I simply don't know. While it has disquieting ramifications for the frog, and for other species nearing extinction living within the bounds of a specific state (though not across state lines), I believe it is a stretch to say that the position is problematic for our marriage rights, which rely (I think?) on the equal protection clause, made applicable to the states by the 14th amendment, not the interstate commerce clause. Would he invalidate civil rights legislation? It SEEMS as though there is nothing in his temperament or philosophy that would promote such a radical departure; to the contrary, he seems to have expressed some respect for the evolution of law. It seems to me that the evidence remains scant. I do encourage plenty of digging for more evidence. With regard to Bush and his philosophy of selecting a judge, and Christian philosophy, etc, somebody (I think) strung two separate clauses in different contexts together. It's an interesting question: of the 200 or so judicial appointments Bush has made (am I correct?), have there been any Jewish appointments? Any that might be quiet secular humanists rather than religious right? Any interesting path of inquiry to pursue to the degree possible. My understanding from the Alliance for Justice is that they tend toward the unreasonable conservative.Finally, and I know I'm going long here, it is interesting to see the NY Times treatment of Mrs. Roberts. Apparently, while she has worked in a capacity to discourage abortion and encourage motherhood, her particular organization veared away from a litigious and legislative path and toward one of offering support to pregnant women. The priest associated with one of her charities said that it would be a mistake to classify her as conservative across the board. I've now run into enough (well.... two....) adamant pro-life women who are also adamantly pro gay rights to know that the two issues are not 100% divisible into distinct contending camps. Mrs. Roberts may be a mark against her Husband on choice (though Senator Kennedy thinks not), but she is not necessarily a mark against her husband on gay rights.

AUTHOR: Advance Indiana

DATE: 7/23/2005 05:52:48 PM

Chris,Since you have been so eager to analyze my thoughts and Marla's, allow me to analyze your's. You posted a comment prior to the President's official nomination in which you stated: (1) Washington Blade says he's more moderate than other conservative; (2) he's a bedrock conservative rather than a movement conservative; and (3) because he went to Harvard he's had a "healthy exposure to different religions, cultures and lifestyles." On this basis, you concluded Roberts was probably not a bad pick for the GLBT. On your first point, you should check out the latest reports on Washington Blade--they don't reflect the sentiment of your first post at all. Secondly, I don't know how you differentiate between a "bedrock" and a "movement" conservative. Put them in a brown paperbag and shake them up and you still have a conservative. That isn't necessarily a bad thing--but your analysis leaves me wanting. Thirdly, the old "he went to Harvard and therefore he's better than the average person" could have only be said by someone who attended an ivy league school and looks down upon the rest of us. For your information, Justice Scalia was a standout graduate of Harvard Law School. That didn't stop him from describing homosexual sex and "immoral and unacceptable" and equating it to "incest, bigamy and bestiality." Bigots can be found everywhere--yes, even at an ivy league school like Harvard. Further, to use the term "lifestyle" to describe one's sexual orientation as you did is amazing. Sexual orientation is fixed at birth, it is not a lifestyle choice. You of all people should know that. The analysis I made was far more thought out than your rather simple quick-to-judge (if i might add) analysis. I ask you to rethink your own analysis of Judge Roberts before you criticize Marla and myself-who come from two entirely different perspectives on this matter.Gary Welsh

AUTHOR: Chris Douglas

DATE: 7/23/2005 06:45:34 PM

Gary:Respectfully, you are misquoting me. I did not say Roberts was probably not a bad pick. I said it was not apparent that his choice was a bad one for us; we would have to wait for the hearing. (Regarding the Blade, I was quoting accurately what they said at the time.) In every instance, I believe I have indicated an interest in seeing what comes up in hearing. There are many nuances, between conservatives, of course, some not so subtle. Christie Todd Whitman, who is pro-choice and pro-gay to a greater degree than most anyone on the Indiana political spectrum, describes herself as a true conservative. (I do NOT describe myself as a conservative, by the way.) Regarding Roberts attendance at Harvard, my observation is not that people who have gone to Harvard are better people. My observation is that they have a very broad exposure to many different cultures, lifestyles, and religions. (I am not using lifestyles in the sexual orientation sense here.... I am using it in the much broader, dictionary sense of "the typical way of life of an individual, group, or culture". I do not endorse the use of the term "lifestyle" as acceptable shorthand for orientation.)Roberts is nearly 20 years younger than Scalia, and went through Harvard after the Vietnam War.... According to the New York Times, Harvard was a substantially different place by then.... with more left-leaning students than right leaning students (which would not have been true in Scalia's day.) I have not suggested that Roberts is not a bigot... No one knows.And for heavens sake, my parents went to IU, and I would have been proud to go there as well. IU today is very diverse institution. But other Justices under consideration had been reported to have gone through universities in the deep south, for instance, where diversity at that time was (I understand) comparatively non-existent. I'm saying that exposure to diversity is a good thing, as virtually all corporations and educational institutions agree, and that the evidence is that Roberts was exposed to it at Harvard. Going to Harvard doesn't make him better than the rest of us; Exposure to diversity and to an education at a liberal school such as Harvard in the 1970's (in Massachusetts, where the majority now support same sex marriage, by the way) makes him a more comforting choice for supreme court justice than someone who lived all their lives in ... let's say... Texas.For heavens sake, I am not criticizing you and Marla... I'm addressing the validity of your arguments on this particular matter. And to be clear, I am not supporting Roberts nomination; I am observing that the arguments against him to the degree that they relate to the gay community have SO FAR not provided a compelling basis to oppose his nomination from a gay perspective. I would be delighted for substantial evidence one way or the other to be presented. (This is not a criticism of you and Marla... it is an observation of the entire national debate I have seen so far.)As you come across information that is substantial, and present it, you are providing a service. I encourage you. But in this community I have seen enough views that I do not hold attributed to me in 10 years to be wary of assumptions of people's opinions based on scant evidence. I can easily imagine Roberts reading such assumptions, both from the far right and the left, and knowing himself to have views very much different from what both conservative and liberal attribute to him.

AUTHOR: Marla R. Stevens

DATE: 7/25/2005 01:47:26 AM

Ed -- The rare gaff does not an unreliable source nor a telling political propensity for wishful thinking make -- especially one like this one. I doubt that anyone's head will roll because of it -- nor should any. But I'm pleased you're following the discussion here. Do you have thoughts about it on the merits of the legal issues involved?There was a very interesting Georgetown professor interviewed early Sunday morning on MS-NBC and I thought Nina Totenberg on ABC was brilliant -- especially on her analysis of what will happen to Roe -- not in the least because she said much of what I have so far here. But, likemindedness and self-congratulations notwithstanding, the big issue may be whether we the people via our Congresscritters will be allowed to learn anything much at all about the man, given the imperial presidency games afoot.I don't remember who said it today but I had to stifle a loud cheer lest I disturb the decorum of the public place in which I heard the broadcast when the notion that Roberts was the president's lawyer and thus the White House would not be forthcoming when documents were requested about memos and such that could illuminate the views of the man behind the work on the administration's behalf -- imperial presidency in its purest form -- was skewered with proper scorn that Roberts was working not for the president the man but for the government of the people of the United States and that the people thus had every right to the documents produced at our expense short of the needs of national security -- and that Congress would still have certain access within their own security processes even then.Chris --I would jump at the chance and, as one once described by a died in the wool conservative very large business owning Republican as "for a damned radical, ... the most conservative person I've ever met", I hope I'd be able to surprise them a bit. Your speaking up, though, was formidably courageous -- platypusicus verbiosus in the best possible sense of it, indeed!Granted "not proven" but leaning so far a slight breeze ... well, Pogo would've said something with enough metaphors -- including plenty with quacking ducks marching through looking and acting for all the world like ducks -- and "gummint" references to leave Mr. Elliott gasping. (I really miss Pogo at times like these.)I don't know if he's 'work-with-able' or if we'd be able to place people close enough to him to get to him if he is. If he is the sort of legal thinker I suspect he is, I doubt it will matter as we'd not be likely to move to suspect class status (even the 5-4 court in our favor has steadfastly resisted that, leaving 14th Amendment considerations empty hopes). And that sort does not respect the penumbral rights nor the notion that the Constitution was designed more to put the Declaration in practice than supplant it.The frog case could be simply what it is on the surface, perhaps heightened to encompass a view of private vs public, business vs workers and the environment that his other purported major affiliation's work takes to the extreme or it could be what some noted legal scholars have already speculated and thus signalling potential not only for dreadful marriage equality rulings but also rollback of Lawrence and perhaps even the Colorado decision.I think you're correct in that one huge hingepin is his views on the proper consideration of the evolution of law but what has me concerned about his comments that I've found on that so far is that they all seem to be in one context only -- confirmation hearings with Roe as the subject. As such, I don't think they're necessarily as illuminative as you're suggesting they might be.Who is doing the reporting really is important here, too, as others have noted. As for Roe, Roe itself is one thing and his views on privacy and the scope of law to protect it could well be, while not entirely another given his statements thusfar, enough different to prove infringing for us.But Roe also stands on its own as a worthwhile subject of concern outside of related privacy law concerns -- including as being a specific gay issue at least where lesbians are concerned given that rape is such a strong weapon of choice for hate criminals.In 1983, he said that it is something that should be left to the states. I lived during a time when that was the practice and I can't begin to tell you how deeply troubling the prospect of returning to that is. That statement went to one of the main points in Roe, cutting the heart out of the case. In the United States, women of means have always had access to the best reproductive freedom the science of their times could offer. It's the workers and the poor who've always paid the price of restrictions on reproductive choice. A states' rights approach -- very Federalist Society by the way -- only exacerbates that.I don't know the data on Shrub's appointees' religious affiliations, either but would caution that fundamentalists of non-Christian bents such as certain orthodox Jews can be considered ideological soulmates to certain Christian fundies -- and just as potentially troublesome where our rights are concerned.Beyond that, I think that Holly could be on to something -- that language usage -- particularly patterns in the off-the-cuff usage of the more verbally challenged as Shrub clearly is, while not being necessarily definitive, is worth studying as a compass of the mind. Or it could be just a coincidence. The old Soviet Union would've been methodical enough to have noted it but I wonder if anyone is left these days other than the occasional musing architect from Cincinnati to take note.Mrs. Roberts' organization, having been involved in such things as confining pregnant women in locked rooms to watch grossly unrealistic shock videos and only providing the most marginal of material assistance -- particularly once the decision to not to terminate was made -- is only a service organization in the loosest sense of the word in my estimation.Of course, you're correct that it would be a mistake to assume that because someone is antichoice, he is going to be antigay. I've done too many voters' guides to fall into that trap. It's his views of the constitutional constructionism that count and I'm afraid we just won't get answers to that -- particularly from the Republicans whose strong questions are necessary for it to "stick" if everyone just gives up early on because the fix is in.The only thing that's certain in all of this is that Rove is the closest thing to a genius antiChrist as I ever hope to see. My hat's off to him. This is the best orchestrated nomination I've ever seen. Political scientists will be studying it into this empire's infinity.On Massachusetts and Harvard and milieu ... Two names: Molly Ivans and Mitt Romney. But otherwise, I'd agree as to otherwise blind picking. My goal on this, however is that the picking is neither lockstep nor blind.Gary -- I don't know what big differences in perspective there are between us on this. I do know that I've thoroughly appreciated your analyses of Roberts to date.Everyone --I'd encourage you, no matter what your views on Roberts, to encourage your senators to approach this with an open mind, to be as deeply and persistantly inquisitive as the seriousness of the office Roberts seeks requires, to take their time to let the hype on both sides play its way out more, and to always put the good health of the dynamic constitution our founders envisioned above politics and personalities.

AUTHOR: Chris Douglas

DATE: 7/25/2005 07:15:53 AM

(Marla:A thoughtful and reasonable analysis. Thank you.)

AUTHOR: Advance Indiana

DATE: 7/25/2005 01:01:51 PM

There's new information about Roberts, including his membership in the Federalist Society--check out my story at Gary Welsh

AUTHOR: Chris Douglas

DATE: 7/25/2005 02:13:33 PM

Gary:Interesting stuff. Thank you. If there is greater involvement in the Federalists than speaking to them, and an effort to conceal that involvement, that would be troubling. Further investigative reporting along those lines is very much appropriate. Chris

AUTHOR: Marla R. Stevens

DATE: 7/25/2005 05:54:52 PM

Oops...I hadn't read Gary's last post when I put my similar new piece on this blog. Sorry, Gary, for stepping on your toes.