An early test of the Gor­such court

Should jus­tices con­sider what a law should be, or what it is?

The Washington Times Daily - - EDITORIAL -

The fire­works over the el­e­va­tion of Neil Gor­such to the U.S. Supreme Court — he was sworn in Mon­day as the ninth jus­tice — over­shad­owed a per­ver­sion of the law by the 7th U.S. Cir­cuit Court of Ap­peals in Chicago that could of­fer an early in­di­ca­tion of the tilt of the newly re­stored Supreme Court.

Kim­berly Hively was a pro­fes­sor at Ivy Tech Com­mu­nity Col­lege in South Bend, Ind., who was passed over for a pro­mo­tion. She said it was be­cause she is a les­bian and she sued the col­lege for vi­o­lat­ing the Civil Rights Act of 1964. Nei­ther the text of the act, nor any­thing in its leg­isla­tive his­tory, ad­dresses such dis­crim­i­na­tion, but her lawyers ar­gue that it should be in­ter­preted as if it did.

The suit was dis­missed by lower court judges, but the judges of the 7th Cir­cuit in an 8 to 3 de­ci­sion dis­cov­ered hereto­fore un­known pro­vi­sions of the Civil Rights Act that pro­tect gay, les­bian and bi­sex­ual per­sons from dis­crim­i­na­tion in the work­place.

Writ­ing for the ma­jor­ity, Chief Judge Diane Wood (ap­pointed by Pres­i­dent Clin­ton) held that “the fact that the en­act­ing Congress may not have an­tic­i­pated a par­tic­u­lar ap­pli­ca­tion of the law can­not stand in the way of the pro­vi­sions of the law that are on the books.”

Judge Wood was joined by five judges ap­pointed by Repub­li­can pres­i­dents, who should been ex­pected to know the law bet­ter. One of them, Judge Richard Pos­ner (ap­pointed by Pres­i­dent Rea­gan) wrote that chang­ing so­ci­etal norms called for a new in­ter­pre­ta­tion of the Civil Rights Act, and he would of­fer such a re-write. “It is well-nigh cer­tain that ho­mo­sex­u­al­ity … did not fig­ure in the minds of the leg­is­la­tors who en­acted Ti­tle VII.” Such prim­i­tives, he said, “shouldn’t be blamed for that fail­ure of fore­sight. We un­der­stand the words of Ti­tle VII dif­fer­ently, not be­cause we’re smarter than the statute’s framers and rat­i­fiers, but be­cause we live in a dif­fer­ent era, a dif­fer­ent cul­ture.”

In a with­er­ing dis­sent, Jus­tice Diane Sykes (ap­pointed by Pres­i­dent Ge­orge W. Bush), called out her col­leagues for leg­is­lat­ing from the bench. “We are not au­tho­rized to in­fuse the text with a new or un­con­ven­tional mean­ing or to up­date it to re­spond to changed so­cial, eco­nomic or po­lit­i­cal con­di­tions.

“The Con­sti­tu­tion as­signs the power to make and amend statu­tory law to the elected rep­re­sen­ta­tives of the peo­ple,” she re­minded her col­leagues. Their rul­ing “comes at a great cost to rep­re­sen­ta­tive self-gov­ern­ment.”

The 7th Cir­cuit’s rul­ing will inevitably reach the Supreme Court be­cause it con­flicts with the rul­ing in a sim­i­lar case by a three-judge panel of the 11th Cir­cuit Court in At­lanta that found that sex­ual ori­en­ta­tion is not a pro­tected class un­der Ti­tle VII.

This dis­pute il­lus­trates why Se­nate Democrats were so fierce in op­po­si­tion to the con­fir­ma­tion of Neil Gor­such. No one knows how he might rule in this case, or one like it, but his record sug­gests that he will be a threat to the left’s wishes and dreams for “re­sult­sori­ented” ju­rispru­dence, not fidelity to the rule of law.

If judges want to leg­is­late, as it ap­pears that some do, they can re­sign their life­time com­mis­sions and run for a seat in Congress, a state leg­is­la­ture, or even a city coun­cil, and leg­is­late away. The law “is a ass,” as Charles Dick­ens ob­served, but a judge doesn’t have to be one.

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