ACLU Flush With New Privacy Rights

In case we needed a reminder that one of the single most important tasks of the president is to nominate competent judges, we get this story out of Minnesota via Drudge.

The ACLU has taken the position that Senator Larry Craig had a privacy right to engage in gay sex in the Minneapolis airport. In a brief to the Minnesota Court of Appeals, the ACLU argued that Craig should be permitted to withdraw his guilty plea, relying on a 38 year old Minnesota case that held that people who have sex in closed stalls in public restrooms "have a reasonable expectation of privacy."

What troubles me most about that decision is not the gay sex aspect. I don't really care about who Craig sleeps with, and would prefer to be spared the sordid details.

I do care about judges making up rights out of whole cloth. Last time I checked, the constitution contains no provisions relating to public restrooms (or, in the language of the Framers, to "necessaries").

The ACLU's reasoning assumes that Craig had a right to have sex in a place paid for, built, cleaned, and heated by the public -- in essence, that the public was somehow required to provide for a venue for Craig to have sex. That crosses the line from personal autonomy to a public subsidy.

So the question for voters becomes: which presidential candidate is most likely (or least likely) to appoint judges who will accept the ACLU's reasoning? For all his faults, President Bush has appointed the most brilliant strict constructionist judges of anyone in recent memory, including Ronald Reagan.

We need another president who will appoint more Alitos and Roberts. And we need enough Republican Senators to confirm those nominees.