Roush’s face reddened only a bit, but on the television screen he looked as if he were wearing rouge. “Whether I do or do not have any personal feelings would not be relevant to my work on the Supreme Court. My work as a justice would simply be to determine whether the state statute offends the U.S. Constitution.”
“Oh, please, sir. With all due respect, I’m nobody’s fool.”
“I never said—”
“The first moment in your life you were in the public spotlight, you were compelled to declare to the world your participation in the homosexual lifestyle. Do you seriously expect me to believe that you wouldn’t jump at the chance to overturn Powers?”
Roush spoke in careful, measured tones. “I seriously expect you to believe that I wouldn’t overturn anything unless there was a constitutional basis.”
“Then you’ll find one. That’s what you activist judges do, isn’t it? I bet you’d love to bury that opinion.”
“As a matter of fact,” Roush said, “I have a lot of respect for that opinion.” Red blotches were creeping up his neck, but Ben hoped he was the only one close enough to notice. “Just as I have a great deal of respect for the late Chief Justice Rehnquist. I don’t believe for a minute that Justice Rehnquist or those who voted with him made their decision based on any personal prejudices, homophobia or anything else. As Rehnquist explained, antisodomy statutes are as old as this nation. It simply isn’t credible to suggest that the framers of the Constitution would’ve been offended by such laws.” He took a deep breath. “That of course doesn’t mean that enlightened senators such as yourself couldn’t pass a law prohibiting statutes they deem discriminatory. It just means they aren’t unconstitutional.”
Ben released his breath. Damn—this man was good. He could almost stop worrying about him—or he might have if the good senator from Wyoming had left it at that.
“Judge Roush, let’s cut through all this judicial rigmarole and talk turkey, shall we? You are a self-professed homosexual.”
“Objection,” Ben said. “Or—point of order. Whatever you want to call it, Mr. Chairman. This question is obviously veering into private matters.”
“There’s nothing private about it!” Matera said, slapping the table. “The man came out of the closet at a press conference!”
“I’d have to agree with her on that one,” Chairman Keyes said, as if his opinion were a surprise to anyone.
“I don’t care,” Ben replied. “If you allow questions in this direction, it will only set a precedent for subsequent committees to find excuses to pry into people’s private sex lives. We already do that to our political candidates. Must we do it to judicial nominees as well?”
“It’s all right, Ben,” Roush said, placing his hand on the mike, making his voice echo through the chamber. “The senator does have a point. What I haven’t heard yet is a question. Is there one?”
“Well then,” Matera said, leaning forward, “here it is. How can we know that your sexual preference won’t influence your judicial reasoning?”
“How can you know anyone’s private life won’t affect their judicial reasoning?” Ben shot back. “This is a frivolous question being asked for the sole purpose of generating opposition based upon intolerance.”
“It’s an important question, Mr. Kincaid. We’ve never had a gay Supreme Court justice.”
“That you know of.”
“Who was openly gay.” She paused. “Is it all right to call you gay, Judge Roush? What term do you prefer?”
Roush gave her a long look. “You may use any term you feel appropriate, ma’am.”
“Thank you. I appreciate your generosity. But my point is, when a man’s thinking is so dominated by one issue and cause, how can we know it won’t control his work on the bench?”
“It never has before,” Roush replied. “I’ve been on the bench a long time, but no one outside my immediate friends and family even knew I was gay until I announced it in the Rose Garden.”
“Why did you keep it secret?”
“It wasn’t a secret. I just didn’t talk about it.”
“You’re splitting hairs.”
“Do you go around talking about your sexual preference a lot?”
“Well…”
“Neither do I. But let’s get real—if I had come out of the closet beforehand, I wouldn’t be here now.”
“So why come out at all?”
“As I said when I accepted the nomination, I felt it would be dishonest not to do so.”
“Still, my concern is that your highest controlling authority might be…well, something or someone other than the Constitution.”
“Your concerns are misplaced.”
“My understanding is that you are in a long-term relationship—”
“Which is absolutely none of your business.”
“What if you contract AIDS?”
“What if you contract syphilis? Nobody ever got disqualified from a job because of something they might get someday.”
“This is totally different. If confirmed, you would be a representative of a…a lifestyle…”
Roush shook his head. “This is so sad. These are the same arguments people used against Kennedy—vote for him and the country will be controlled by the Pope. The same arguments they used to keep women from voting, to keep them off the Supreme Court till the 1980s, when Ronald Reagan—a Republican—appointed Justice O’Connor. Sometimes it seems as if we haven’t made any progress at all.”
“You can compare yourself to Kennedy and women if you like, but they were both in the mainstream in a way that you simply are not. You represent a minority lifestyle, one that many people oppose and most people do not share. How can you possibly claim that you can represent the thoughts and interests of the American people when you are so different from them? When you are nothing like them?”
“Nothing like who?” Roush exploded. “You?”
Ben pulled the microphone away. “These questions have in fact become quite offensive. We will not be answering any more of them.”
“Mr. Kincaid—”
“You heard me. I’m not going to change—”
Chairman Keyes leaned forward. “Mr. Kincaid, I guess I need to remind you again that you are not in a courtroom. You can’t plead the Fifth. Refuse to answer and the nominee could be held in contempt of Congress.”
“You can huff and you can puff,” Ben said firmly, “but I’m instructing the judge not to answer any more offensive questions.”
“Just a minute, Ben,” Roush said, laying a hand on his arm. Damn it, why wouldn’t the man let him do his job? “I do want to say something before we leave this subject, once and for all, I hope. In the first place, I haven’t been nominated to the Senate. I’m not a representative of the people. That’s your job, Senator. The judiciary is specifically designed to be independent of the legislature, a check on the legislature. It is not a judge’s job to represent the thoughts and interests of the American people—it’s a judge’s job to enforce the law, pure and simple.”
“Without any regard to the wishes of the people?” Matera looked as if he had just suggested torching the Washington Monument.
“Frankly, yes. And let me make a second point. You talk about representing America—there are many Americas. And they don’t all look like you. From the outset, America has been a melting pot. Our diversity has been our strength. It still is, even if some misguided folks want to re-create the whole country in their own image. We do not have a national religion, or a national race or color. We do not all have the same sexual preference and we never have. America has many faces. And we are better and stronger for it.”