April 27, 2007

A 'Whizzer' of a debate gaffe

Posted by: Chris

Last night's first Democratic presidential debate featured an interesting look at all the candidates and, with the exception of some bizarre rants from former Alaska Sen. Mike Gravel, relatively few gaffes. The worst of the evening was probably from New Mexico Gov. Bill Richardson, someone I've written about favorably in the past.

Put on the spot to name his "model Supreme Court justice,"  Richardson named Byron "Whizzer" White. Debate moderator Brian Williams of "NBC Nightly News" didn't allow Richardson an opportunity to explain the selection, but probably Richardson was responding to White's compelling biography. A college football star from Colorado, another Western state, White went on to serve in World War II before attending law school and working as Bobby Kennedy's No. 2 in the Justice Department.

But White's tenure on the Supreme Court, after being appointed by JFK in 1962, was anything but exemplary. White was on the wrong side of history in three of the most important civil rights cases of his tenure: Miranda vs. Arizona, which established that police had to inform an arrested person of their constitutional rights; Roe vs. Wade, the landmark abortion rights ruling; and Bowers vs. Hardwick, which upheld Georgia's sodomy law.

And White just didn't vote in the Roe and Bowers cases; he wrote the lead dissent in Roe and the majority opinion in Bowers, which was later overturned in Lawrence vs. Texas. White's approach in Bowers was particularly disingenuous, as he framed the issue about whether there was "a constitutional right to homosexual sodomy," even though the Georgia law at issue applied to both heterosexual and homosexual sex.

White went on to characterize the Court's "right to privacy" opinions as closely connected to family and marriage. "No connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated, either by the Court of Appeals or by respondent," White wrote dismissively. 

In 2003, Justice Anthony Kennedy explained for the Court in Lawrence why White's approach wrongfully treated homosexual sex as purely sex, even as the Court associated heterosexual sex as fundamentally intertwined with marriage and family.

"To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward," Kennedy wrote, "just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse."

Richardson may well not be familiar with White's role in Bowers (or Roe or even Miranda), but he's certainly got some explaining to do. It's unfortunate that a candidate with such a strong record enacting laws the respect the dignity of gay people made such a poor debate impression.

Tags: Bill Richardson, Byron Whizzer White, sodomy