RUSH: Now, I want to go back to this LA Times John Roberts story because at the same time I want to mention what the New York Times is doing. We had a little column yesterday from a lib in Pittsburgh, Reg Henry: “John Roberts is too nice.” The day before we had a piece from somebody else that John Bolton is too mean. Now we have the New York Times doing an exhaustive investigative report on the adoption of John Roberts’ children. They’re working on that report. It’s not in the paper today, but they’re working on it. I’m told that the adoption records of his children are sealed which is no doubt just going to entice the New York Times even more. You tell the media they can’t get something, they’ll turn over every barrel to get to it — I can attest from personal experience. Then we come to the LA Times story today, “Roberts donated help to gay rights case. In 1996 activists won a landmark anti-bias ruling with the aid of the high court nominee.” The LA Times is attempting to drive a wedge here between conservative Republicans and Judge Roberts on the basis that the Times is assuming that all conservatives hate gays and they have that assumption as part of the story, and it offends me because it’s not the case but they make it so, and that’s the basis on which they think they can successfully drive the wedge. Here are the details that are relevant in the story from the LA Times: “Supreme Court nominee John Roberts worked behind the scenes for gay rights activists and his legal expertise, helped them persuade the Supreme Court to issue a landmark 1996 ruling protecting people from discrimination because of their sexual orientation. He was then a lawyer specializing in appellate work. He helped represent the gay rights activists as part of his law firm’s pro-bono work.”
He didn’t write the legal briefs. He did not argue the case before the Supreme Court, but he was “instrumental,” it says, “in reviewing the filings and preparing oral arguments according to several lawyers intimately involved in the case. Roberts’ work on behalf of gay rights activists whose cause is anathema to many conservatives,” says the LA Times, appears to illustrate his allegiance to the credo of the legal profession to zealously represent the interests of the client, whoever it might be. All right, now, I do know, because I have been in contact with people, and I do know that it is driving a wedge. It’s causing some curiosity and concern from people on the right. Now, let me tell you why. Because people are beginning to ask, “What if the LA Times story is true?” The conservatives on the judiciary committee need to do their job, too, and their job is to focus on judicial philosophy. Liberals aren’t the only ones that get to ask questions on this committee. Republicans get to, too, and they ought to probe this whole business of judicial philosophy. Now, what happened here, there was a 1996 case, Supreme Court case called Romer vs. Evans, and that’s the case that Roberts worked on. The people of Colorado passed a ballot initiative that basically had one premise. The initiative allowed tenants who were devout Christians to refuse to rent to gay couples, and the people of Colorado duly voted that. It was duly passed and it caused a cacophony and a firestorm. This one had nothing to do with gay marriage. This precedes the whole gay marriage movement or argument, if you will.
This was primarily about tenants who were devout Christians who wanted to refuse to rent to gay couples, to be able to have the right to do so, to rent rooms or properties that they owned to gay couples — and we had a caller from Hollywood, 45 minutes ago named Keith who made the point, you know, behavior is not a civil right. We don’t accord civil rights to behavior. Race and religion are not the same as sex when it comes to bestowing civil rights. But the larger point, ladies and gentlemen, is that the Constitution does not provide what the court said in Romer vs. Evans — and when it doesn’t it’s to be left to the states when it’s not specified, and there’s nothing wrong with asking Judge Roberts about his views of the equal-protection clause in the Fourteenth Amendment, what’s it encompass and so forth. This particular case, Romer vs. Evans, actually threw out a ballot vote of the people of Colorado and then imposed the views of six justices on the issue of same sex rights, behavioral rights, if you will. Judge Scalia, Justice Scalia, wrote a scathing attack on the court’s action. He was joined in the scathing attack by Rehnquist and Clarence Thomas. Let me read to you a sentence from Scalia’s dissent. He condemned the court for injecting itself in the cultural debate in the country. Remember, and Roberts said in his questionnaire, “judges are not to decide social issues.” They are to decide legal cases that come before them. This is purely a social issue that the people of Colorado duly voted on. You know, one side won this thing, and Scalia wrote, “Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state Constitutions.”
This court has no business imposing upon all Americans the resolution favored by the elite class from which the members of this institution are selected pronouncing that animosity toward homosexuality is evil. This court has no business doing that; this court has no business being involved in social issues — and he’s calling the six judges who were in the majority the “elite class” from which the members of this institution are selected, meaning justices are elites. They’re picked from the best and the brightest on the benches and courts from all over the country, and he says this court has no business imposing upon all Americans, and that’s what they did. They took a Colorado passed ballot initiative and said that doesn’t count, and furthermore none of the rest of you states can do this, either, and what they did was basically pronounce that animosity toward homosexuality is evil and the Supreme Court in Scalia’s opinion says, “That’s not our role. We don’t have that right on this court.” So, back to Judge Roberts. Judge Roberts worked to facilitate the Supreme Court majority overturn. He did so pro-bono. Now, all anybody is saying here is that there’s reason to ask him questions about this, especially in light of what he said in his questionnaire about the fact that the Supreme Court nor judges are to decide social issues. That’s not what they’re saying. We read it to you yesterday from this questionnaire. The press was making a big point that he stands for precedent. Well, how about this standing for precedent? This case, Romer vs. Evans, led to the Texas case, which the court then overthrew or overturned. That was the Texas sodomy law, and there were 16 other states that had the same law, and in overturning the Texas law they overturned all those other states’ laws as well, and so that’s two of three legs on the way now to granting a particular behavior as a civil right. The behavior is not the same as sex, not the same as race, because once you start sanctioning a behavior as a civil right then where do you stop? So it’s something that does need to be asked about — and, of course, then this business of precedent again.
Here we’re asking Roberts, “What about precedent?”
“Well, I respect precedent.”
It’s all about Roe vs. Wade, but when it came to the Texas law? “Ah, that’s a rotten law. To hell with precedent on that one! We’re going to overturn ourselves,” the court said, and Scalia and Thomas wrote scathing dissents in that decision as well.
RUSH: Just so there’s no confusion, the Colorado ballot initiative is not just about devout Christians being forced to rent property to same-sex couples that they disagreed with. That’s just an example. The whole purpose of the ballot initiative in Colorado was to prevent the use of the civil rights laws to be applied to same-sex conduct and relationships as opposed to race and religion. You know, it is risky when you start anointing behaviors as civil rights, and the ballot initiative in Colorado was designed to stop that dead in its tracks, and the courts said, “You can’t do that! We’re going to legislate behaviors as civil rights,” and from that case they went on. The Texas case is Lawrence vs. Texas to say that same-sex sodomy is constitutionally protected, and that all forms the basis for ruling that same-sex marriage cannot be prohibited by the states under the Fourteenth Amendment’s equal-protection clause which has what has begot the same-sex marriage amendment to the Constitution. The Supreme Court has put all of this in motion, and it started in Romer vs. Evans in 1996 in Colorado. I just want you to understand the details of this and the trail to where it leads. Linda, Orange County, California, welcome to the EIB Network. Hello.
CALLER: Yes. Thank you, Rush. God bless you, Rush.
RUSH: Thank you.
CALLER: Listen, I am so mad. I’m just so angry this morning. I’m listening to this, and the Democrats attacking Judge Roberts on his pro-bono work, or even worse, the Democrats attacking Mrs. Roberts for how her children are dressed? This is, to me, it is exactly like during the 2004 campaign, Rush, when first Edwards and then Kerry — Do you remember? — when he started bringing up Mary Cheney during the debate?
RUSH: Yep. I mean, the supposedly tolerant ones among us are the ones trying to divide everybody. He’s the one, Kerry, that mentioned Mary Cheney’s gay and started putting words in the vice president’s mouth about all this and trying to use it in a denigrating way, being critical of it. And again it’s based on the assumption that conservatives hate gay people, which just isn’t the case. This New York Times investigation of his children and their adoption, the reporter that’s doing the story said, “Ah, it’s just part of our standard background check.” Well, that’s interesting to know. The New York Times apparently thinks that Supreme Court nominees have to pass their own background check in the New York Times. And so we’re now going to investigate his wife and what she does in her work for the pro-life movement, we’re gonna to attack the way his kids are dressed at the White House on the day he is named the nominee, and now the New York Times’ exhaustive investigation into his adoption records and his children and so forth, part of their background test, or standard background check that I guess conservative nominees have to pass at the New York Times.
RUSH: Plymouth, Massachusetts, here’s Larry. I’m glad you called, sir. Nice to have you on the program.
CALLER: Hi, Rush.
CALLER: I want to just talk about a little bit from the left about like in Massachusetts, you know, we’re not thrilled, I’m not thrilled with the fact that judges, the SJC made decisions that the public doesn’t get to vote on — and I had two questions for you and we can come back to this. One, do you think a lot of people voted on one or two issues only, and, two, are we better off not having like parties and let it break down to who people really are? What do you think?
RUSH: Are we better off not having like parties? What do you mean?
CALLER: Like Democrats and Republicans, what if nobody had a party? Remember in the old days, there was one lever that voted for everybody? The one-party system, in other words.
RUSH: Now, there have been parties — Abraham Lincoln, the father of the Republican Party, for example. The parties go back a long way. Gotta have parties, gotta have factions. The Founding Fathers always spoke of “factions” in the Federalist Papers and their value. That’s not a problem. But the federal judiciary, you know, making decisions that the public doesn’t get to vote on, that’s happening more and more, and there’s a reason for it, and I’ve talked about this at great length. Look at the nomination of Roberts. The nomination of Roberts clearly illustrates that the majority of people in this country think the Supreme Court’s a political institution, and they think the Supreme Court is the ultimate decision-maker on all these controversial issues, and that’s because that’s what the court has said it’s going to do, ever since Marbury vs. Madison, and the left has attempted to use the court to institutionalize its beliefs since they can’t win at the ballot box. The left keeps losing at the ballot box. Their big issues — such as forced busing, any number of liberal issues that have woven into the fabric of our society would have never passed by a vote of the people on a ballot initiative or by a vote of the people’s representatives in Congress, and the left knows this. So the court is now a political institution, and because it’s been that for so long, a lot of average Americans look at it that way, and an education process is needed. That’s why I was so excited about who Judge Roberts said in his questionnaire response yesterday when he said, “We’re not here to decide social issues. We’re here to decide legal cases that come before us,” but the court has become the arbiter of cultural and social issues, and they do it on the basis of the personal policy preferences of a majority of the judges from case to case, and that’s not what the Supreme Court is supposed to be.
The personal policy preferences of judges is not supposed to impact their view of the law, but it has become that. Now, as to people voting on one or two issues only, I believe in freedom. If people are single-issue voters and that’s what’s going to get ’em to the polls, I’m not going to criticize them. I will be critical of single-issue voters, but I’m not going to be critical of voting that way. I’m not going to try to stamp it out. You know, I’m not at all oriented in that way. Is it a problem? It can be, but, I mean, it’s up to people that are trying to get the votes of these people to persuade them to vote for them. It’s all a process, and the voters are the voters, and if somebody doesn’t get a majority of votes, then it’s up to them next time to try. It’s really not hard to understand this. The biggest problem that I think we have is a total woeful, inept education process when it comes to the Constitution in this country and the Supreme Court, the separation of powers, all of these things. I think there’s so much ignorance in this country about it, because it isn’t taught, and it’s one of the things we try to do here is rectify some of that ignorance by actually explaining, and some people say, “But, Rush, it’s too hard.” No, it’s not. We make the complex understandable on this program. It’s actually brilliantly simple. That’s one of the great things about the Constitution. It’s brilliantly simple, and it’s all these elites that have made it all confusing and esoteric to people when it really need not be.