Gay Justice?
Former Stanford Law School dean Kathleen Sullivan is, according to the National Law Journal, one of the 100 most influential lawyers in America. She’s a nationally prominent scholar and teacher of constitutional law, and author of the nation’s leading casebook in constitutional law.
Stanford Law School professor Pamela Karlan clerked for former Supreme Court Justice Harry Blackmun, is founding director of Stanford’s Supreme Court Litigation Clinic, and is a leading expert on voting and the political process.
Sullivan and Karlan are both frequently mentioned as possible Supreme Court nominees for President Obama.
Both women also happen to be openly lesbian.
Supreme Court vacancies can serve as a barometer for society. The first Catholic Supreme Court Justice, Roger B. Taney, was appointed in 1836. The first Jewish Justice, Louis Brandeis, was appointed in 1916. The first African-American Justice, Thurgood Marshall, was appointed in 1967. The first woman, Sandra Day O’Connor, in 1981.
Many Hispanic groups are pushing for a Hispanic — such as Judge Sonia Sotomayor — to be named.
Similarly, gay and lesbian groups are pushing for an openly gay or lesbian nominee.
Please note the key word: "openly." President Nixon’s ill-fated 1970 Supreme Court nominee Judge G. Harrold Carswell — rejected by the Senate after it turned out he had once advocated "white supremacy" — was in 1976 arrested Tallahassee after making an "unnatural and lascivious" advance towards an undercover police officer whom he met in a Tallahassee mall men’s room.
(An interesting side debate: should the late Benjamin Cardozo, a Justice of Portuguese descent — count as the first Hispanic Justice? The Census Bureau does not classify Portuguese-Americans as "Hispanic," though historically the term was a reference to the Iberian Peninsula, which included Portugal. Anyway.)
Peter Sprigg, a senior fellow at the conservative Family Research Council, says that "the real issue would not be the person’s private life but the issue would be would they be imposing their personal ideology upon the court. In this case would they be imposing a pro homosexual ideology, a pro-same sex marriage ideology."
Sullivan, for instance, joined a friend of the court brief arguing that same sex marriage should be legal even if the "equal protection" clause "would not always have been interpreted by the courts to forbid discrimination against gay people." Not allowing same sex marriage is a violation of "both due process and equal protection; the former because the right to marry is a form of liberty and the latter because the restriction treats lesbians and gay men differently from straight individuals."
That she believes that because she’s lesbian, and not because she believes the refusal to allow same sex marriage constitutes unconstitutional discrimination, is another matter.
Either way, discussion about a Justice Sullivan or a Justice Karlan comes at a time when the Obama administration is hearing some impatience voiced by gay and lesbian activists on other issues.
"I think there is some disappointment in the gay community that (President Obama) hasn’t in this initial period spoken more directly and more forcefully about some of the issues he spoke about on the campaign," Richard Socarides, a former adviser to President Bill Clinton on gay and lesbian issues, told us for Good Morning America today. "Specifically the ‘Don’t ask/Don’t tell’ policy in the military."
– jpt

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Shouldn’t we have a transgender judge on SCOTUS? Isn’t it time for that?
How about a sexually ambivalent judge?
How about the most qualified candidate- period?
Posted by: drjohn | May 8, 2009, 9:29 am 9:29 am
Obama’s votes against confirming both Chief Justice Roberts and Justice Alito, both highly qualified, should tell you all you need to know about his choice.
Obama said :”We need somebody who’s got the empathy to recognize what it’s like to be a young teenage mom.”
Look for Obama to pick Octomom.
Posted by: Sigmonde | May 8, 2009, 9:51 am 9:51 am
Hows about an openly Left Pedophile? Don’t they have a voice and according to a recent move by a black congressman, doesn’t everyone with a phile attachment need to be covered in rights?
Gawd…..will we ever regain sanity and govern from the middle again?
Here is a statement from the gays back in the 90′s……
“We’re here, we’re queer and we’re in your face!”
Damn tootin’ you are111
Posted by: American Infidel | May 8, 2009, 10:27 am 10:27 am
I am an Empath. I find it clouds my decisions rather than sharpens them. Empaths feel others feelings, especially distress at heightened levels. It is hard to be judicious when your emotions and compassion overrun your analytical and rational thoughts.
As far as a Gay justice? Sure, why not. The Supreme Court justices appear to be a very dour and austere bunch. A little gaiety would do them good. What? It means what? Oh. Nevermind.
Actually, I believe in meritocracy. Get the best judicial mind and worry less about what box they might fit in. If the best mind is a white, Irish, Catholic, male, nominate him. If the best mind is a half black, half Hispanic, Wiccan, lesbian, nominate her.
But, don’t pick an Empath. It would be a disaster.
Posted by: Fallon | May 8, 2009, 10:35 am 10:35 am
It is pathetic!
Posted by: anonymous | May 8, 2009, 10:39 am 10:39 am
Somebody–I think it was C.S. Lewis–once wrote a story about a girls’ school in which the girls had been thoroughly indoctrinated in progressive sensibilities. They fervently hoped that a race of people would be discovered living on the moon, so that they could be the very first to declare that they weren’t prejudiced against Moon People.
Posted by: Fascist Hyena | May 8, 2009, 10:39 am 10:39 am
President Obama, who said during his campaign “I do believe that tradition, and my religious beliefs say that marriage is something sanctified between a man and a woman” is firing a U.S. Army officer, and Iraq War veteran, for being gay.
—Lt. Dan Choi, a West Point graduate and officer in the Army National Guard who is fluent in Arabic and who returned recently from Iraq, received notice today that the military is about to fire him. Why? Because he came out of the closet as a gay man on national television.—
Posted by: Inconvenient Truth | May 8, 2009, 10:40 am 10:40 am
drjohn, i completely agree with your post. i think it essential that the most qualified judge is appointed to the bench: that will serve our nation best. i am gay and am insulted that a nominee would be chosen simply because of his/her sexual orientation. i wouldn’t want to be hired just because of my sexual orientation (i wouldn’t want to be discriminated against). i would want to be the best person for the job period.
Posted by: Paul Wall | May 8, 2009, 10:46 am 10:46 am
Sullivan’s problem? She recently failed the California bar.
Posted by: anon | May 8, 2009, 10:49 am 10:49 am
Don’t forget the gay protestors that invaded the curch service in cal – they would bring diversity.
Posted by: jamescbuilder | May 8, 2009, 10:52 am 10:52 am
Truth, that is why we need to pay careful attention to what people do even more than what they say.
The old adage, “Actions speak louder than words” is still relevant.
Obama said lots of things while campaigning, his actions as President cancel out at least half of them. Look at the budget.
Will you forgive President Obama if he appoints a Gay justice to the Supreme Court if he keeps “Don’t ask, don’t tell” and “DOMA”?
Posted by: Fallon | May 8, 2009, 10:54 am 10:54 am
If pedophiliia is not a sexual orientations – then why are they protected in the hate crime bill recently passed by congress and included in the Senate version.
Posted by: jamescbuilder | May 8, 2009, 10:56 am 10:56 am
Inconvenient Truth—thanks for your concern for gay rights. the president doesn’t fire soldiers, commanding officers do. i think Obama will reverse “don’t ask, don’t tell” (it was a campaign pledge, if i remember correctly) and i hope he will allow gay americans to serve openly.
Posted by: Paul Wall | May 8, 2009, 10:58 am 10:58 am
The most qualified is not necessarily the best choice. Highly qualified is essential, but the SCOTUS has swung hard right and there needs to be balance. I always favor a moderate and don’t mind one extreme on the left and one on the right. Now we have 4 extreme right justices. Gender and racial balance can be appropriate, where there has been discrimination. Women are greater than 50% of law students but not in the age pool a justice is typically chosen from. A second female justice is warranted, now or in the next few years. Hispanic would be a plus, but not a criteria. With all the sexual orientation litigation coming up I’d leave that out as a criteria, but wouldn’t hesitate to appoint the best justice if he or she happened to be gay.
Posted by: John | May 8, 2009, 11:01 am 11:01 am
This is from the moderate liberal (and always thoughtful) Stuart Taylor at NPR:
“Such an appointee [a crudading liberal] might push to expand racial preferences, abortion rights, and especially welfare rights for poor people; to strike down the law barring openly gay people from the military; to recognize gay marriage (which Obama has opposed); to end the death penalty and curtail gun rights (both of which he has supported); to free Guantanamo detainees unless they can be convicted of crimes (which would reject Obama’s policy); and much more.
“The preceding parentheticals suggest some of the reasons I’m cautiously betting that Obama will choose a moderate liberal who believes in judicial restraint. By this I mean deference to elected officials unless they violate clear constitutional commands or show gross irresponsibility. The lack of such restraint is what I mean by ‘judicial activism.’
“A restrained liberal justice might, for example, hope for legislative recognition of same-sex marriage (as do I) but decline to rewrite the Constitution to override the democratic process on the issue by judicial decree.”
I recommend you read the whole thing.
Posted by: Fascist Hyena | May 8, 2009, 11:10 am 11:10 am
jamescbuilder | May 8, 2009 10:56:28 AM please cite this law, sir. i have no idea about what you are referring to. do you really think sexual orientation and pedophilia are synonyms? what do you do with the fact that most pedophiles are white, heterosexual males? you don’t blame pedophilia on straight white guys do you? pedophilia is a crime regardless of sexual orientation.
Posted by: Paul Wall | May 8, 2009, 11:12 am 11:12 am
We should also consider Shannon Minter. He was the lead attorney arguing against proposition 8. Shannon was born a female, but now he is a man, and a very bright, constitutional lawyer.
I couldn’t think of someone who is more aptly suited to sit on this extremely one sided majority court. He would satisfy the gender, and sexuality aspect, and his legal credentials are impeccable, and revolutionary.
Posted by: FlexSF | May 8, 2009, 11:19 am 11:19 am
What about just appointing someone who knows the law and will uphold it?
Posted by: david | May 8, 2009, 11:21 am 11:21 am
HeteroDefenseLeague—you already have Scalia, Thomas and Roberts serving the interests of your heterosexual defense fund.
hatred of homosexuals is palpable, but remember where the discrimination is coming from: there is no federal law protecting gays in the workplace against arbitrary termination. the state of Texas, where i live, has no state law protecting gays against arbitrary firing. are you enduring the same? have you been fired for being a christian or because you have a family? there are laws protecting you so you may practice your religion and you are protected from being fired for having a family. it is a shame that with all of the rights you have as a (i assume) white christian (i.e., every right there is) you relish in denying those rights to others. you need no defense, you have all the power.
Posted by: Paul Wall | May 8, 2009, 11:31 am 11:31 am
Why is it gays can’t be trusted to rule on “gay issues” but straights can? Do we as Justice Thomas to recuse himself from every case involving race? Does Justice Ginsberg have to recuse herself from all cases involving gender?
I suppose all the previous 106 out of 110 justices who just happened to be straight white men didn’t bring any biases with them to the court???
There is nothing wrong withing adding diversity to the court by looking for well qualified people outside of the straight white male world.
Posted by: WeTheSheeple | May 8, 2009, 11:36 am 11:36 am
“… couldn’t think of someone who is more aptly suited to sit on this extremely one sided majority court.”
Extremely one-sided majority? Until he announced his retirement you had Souter, Ginsburg, Breyer and Stevens on one side, and Scalia, Thomas, Alito and Roberts on the other. Where would you put Kennedy?
Posted by: Fascist Hyena | May 8, 2009, 11:40 am 11:40 am
david:”What about just appointing someone who knows the law and will uphold it? ”
There are thousands of options who know the law and will uphold it. There are hundreds who are world class jurists widely respected for their expertise.
This isn’t a matter of picking the one person who best fits the technical requirements, it is a matter of picking from amongst the hundreds who best fit the technical requirements.
Posted by: jhw539 | May 8, 2009, 11:43 am 11:43 am
Officers in the military are asked to resign. They are not fired!
Do not use the military for social engineering…..it does not work!!
American Infidel
U.S. Marine
’71-’76
Now labeled and profiled by the Obama regime as a Right Wing Veteran Extremest!
Posted by: American Infidel | May 8, 2009, 11:46 am 11:46 am
How about a Justice that actually supports and uses the Constitution of the United Staes in their rulings? This justice could then ask the other justices why they are supporting Unconstitutional Laws litigated by the Supreme Court that has no authority under the Constitution to do so and attacking the Church for questioning their authority to pass Roe vs Wade. Incidentally, Separation of Church and State works both ways-The Federal Government cannot pass laws that infringe on the rights of the Church under the Constitution…Sorry, I keep mentioning that outdated document -the Constitution that assures rule of the Majority of the people and not the minority of 9 justices and all the minority special interest groups-What was I thinking of?
Posted by: Dave of Detroit | May 8, 2009, 12:01 pm 12:01 pm
Somebody–I think it was C.S. Lewis–once wrote a story about a girls’ school in which the girls had been thoroughly indoctrinated in progressive sensibilities. They fervently hoped that a race of people would be discovered living on the moon, so that they could be the very first to declare that they weren’t prejudiced against Moon People.
***************************************************
What I have to say has nothing to do with supreme court justices, Mr. Facist Hyena, anymore than what you wrote a while back. But you’re really mangling CS Lewis. You’re refering to The Silver Chair from the Tales of Narnia, something that really helped me with my dyslexia because I loved reading the books so much. The school you mention is a coed “Experiment School” which doesn’t punish bullies, not an all girls school that sounds like it indoctrinates them into Women’s Lib!! Sounds like you;re not too cool about a woman getting the seat. But anyway, as far as fantasy and the supreme court goes, since you brought it up to begin with, I wouldn’t want a supreme court justice from there either.
Posted by: amber | May 8, 2009, 12:06 pm 12:06 pm
Thanks, Amber–it’s been many, many years, and my memory may be flawed. Or we may be talking about two different stories. But if you think the point I made has nothing to do with the discussion here, you need to consult with, say, John Kerry about nuances. Or maybe just look for an emanation from a penumbra.
Posted by: Fascist Hyena | May 8, 2009, 12:24 pm 12:24 pm
Why is this all about the gays and not about the family unit. Marriage and the family unit has been upheld in societies because it is a stabilizing factor in communities.
It’s a clear message to children as to how a family works, how people procreate and sustain the species. Gayness is clearly confusing for children, harder to explain for parents as it is a departure from pairings in other nature. If gays argue their civil rights are violated by not being able to participate in something set aside for male/female pairings, how can we refuse polygamy or other groups that want the economic & social privileges afforded by traditional marriage. I find this troubling.
Posted by: Kary | May 8, 2009, 12:35 pm 12:35 pm
You’re welcome, Mr. Hyena. But nobody really gives a flip about John Kerry’s “nuances” in respect to supreme court justices anymore than they do about “emenations from penumbras.”
Posted by: amber | May 8, 2009, 12:37 pm 12:37 pm
Amber, I think the story I am remebering may be “That Hideous Strength.”
And in the matter of Supreme Court Justices, emanations from penumbras have been important ever since Mr. Justice Douglas’s opinion in Griswold v. Connecticut. Some judges believe that important, never-before-discovered constitutional rights can be found in such places.
Posted by: Fascist Hyena | May 8, 2009, 12:45 pm 12:45 pm
we could use Justice William J. Brennan again. the Court has never been the same without him and it probably never will.
Posted by: Paul Wall | May 8, 2009, 12:49 pm 12:49 pm
Kary:”Why is this all about the gays and not about the family unit. Marriage and the family unit has been upheld in societies because it is a stabilizing factor in communities.”
Monogamous and committed same-sex family units are also a stabilizing factor in communities. Same-sex couples take care of each other during sicknesses, unemployment, and other times of trial reducing the strain on society and charity’s safety nets.
Marriage is not just about children, as anyone who knows an infertile couple or has seen a joyous pair of 50 year old newlyweds can attest.
“how can we refuse polygamy or other groups that want the economic & social privileges afforded by traditional marriage.”
Anything other than a pairing of two people opens up a host of unresolved and tricky precedence issues under law. The consequences and benefits of a two person legal union is very well known and established as beneficial to society, the same is not true for polygamy. Polygamy has it’s own raft of completely different legal and social issues that it must address.
Posted by: jhw539 | May 8, 2009, 12:52 pm 12:52 pm
Why is a person’s fitness to serve based on one issue? If that’s the case there is no one that anyone could accept. Nobody agrees with anybody 100% on every issue. I want a court that will rule based on the Constitution.
Posted by: Oonogil | May 8, 2009, 12:56 pm 12:56 pm
American Infidel | May 8, 2009 11:46:35 AM, while i respect your service to our nation i don’t think that entitles you to disenfranchise american servicemen and servicewomen from the military based on your (prejudiced) views on homosexuality. there have always been homosexuals in the military and whether you like it or not (or knew it or not) you served with them. gays enlist and die for their nation, just as straight soldiers do. and “Officers in the military are asked to resign. They are not fired!” has to be one of the most disingenuous thinks i have read today. gay officers are just asked to resign? what if they chose not to resign? they are dishonorably discharged? or do they just keep on serving after being asked to resign and ignore the letter. they are basically forced to resign correct? and what about enlisted soldiers?
Posted by: Paul Wall | May 8, 2009, 1:07 pm 1:07 pm
“The consequences and benefits of a two person legal union is very well known and established as beneficial to society…”
I don’t think we know enough yet about the development of children raised in households with same-sex parents.
Posted by: Fascist Hyena | May 8, 2009, 1:36 pm 1:36 pm
” i don’t think that entitles you to disenfranchise american servicemen and servicewomen from the military based on your (prejudiced) views on homosexuality.”
There simply is no such thing as enfranchisement into the armed services. There is absolutely no such thing as a right to serve in them.
“there have always been homosexuals in the military and whether you like it or not (or knew it or not) you served with them.”
True. But they were prohibited from disclosing or demonstrating their sexual preference, and as long as they continue to do so they are permitted to serve.
Posted by: Fascist Hyena | May 8, 2009, 1:40 pm 1:40 pm
Fascist Hyena | May 8, 2009 1:36:52 PM
“I don’t think we know enough yet about the development of children raised in households with same-sex parents.” we do know that children raised by heterosexual parents are often subject to neglect, physical/emotional/sexual abuse, abandonment, etc. hardly an arguement to abandon heterosexual parenting. we can wait for long-term studies and have same-sex parenting at the same time (they are not mutually exclusive).
Posted by: Paul Wall | May 8, 2009, 1:50 pm 1:50 pm
there is no justification for discrimination, none. soldiers can serve as long as they keep secret their orientation. we should have one or the other: a) both homosexual and heterosexual soldiers must keep their sexual orientation secret or b) allow both to serve openly. why should gays not have the right to serve openly when their heterosexual counterparts do? this is america and this bigotry and discrimination is intolerable and embarassing as to our standing in the world. Israel does just fine with openly gay soldiers (as do most European countries).
Posted by: Paul Wall | May 8, 2009, 1:55 pm 1:55 pm
“why should gays not have the right to serve openly when their heterosexual counterparts do?”
One reason is that heterosexual males and females are kept separate from one another in may respects to avoid the kinds of sexual tensions that can affect combat readiness. That can’t be done with homosexuals.
Posted by: Fascist Hyena | May 8, 2009, 2:09 pm 2:09 pm
Why go to all the trouble of granting gay citizens their equal rights when you can instead placate them with tokenism?
Posted by: paul | May 8, 2009, 2:10 pm 2:10 pm
“we do know that children raised by heterosexual parents are often subject to neglect, physical/emotional/sexual abuse, abandonment, etc. hardly an arguement to abandon heterosexual parenting.”
Of course we know that, and of course it’s not an argument for abandoning heterosexual marriage. We know that, notwithstanding many instances of abuse, on the whole the institution has served humanity and Western civilzation very admirably for millenia. Perhaps homosexual marriage would do the same. My point is that we do not know, and it is very hard to dispute that point.
I have no problem whatsoever with same-sex partners cohabiting or marrying. I do have concern for the unknown, but undeniable, third-party effects on children raised by such couples.
Posted by: Fascist Hyena | May 8, 2009, 2:13 pm 2:13 pm
I expect that Obama will soon arrive at one of his photo-ops, or the Jay Leno show dressed as a, Spandex clad, Drag Queen in, 6-inch black leather, spike heels to show his solidarity with the Gay & Lesbian community who got him elected.
Question: How will Americana react to a Gay / Lesbian Supreme Court Justice nomination?
Posted by: Akdogman | May 8, 2009, 4:30 pm 4:30 pm
surely we’ve had a few gay justices already…what matters is whether they legislate from the bench, or not?
Posted by: J House | May 8, 2009, 4:45 pm 4:45 pm
paul wall, israel didn’t do so hot in its last 2 conflicts in Lebanon. Are you saying it is because they have a lot of gay soldiers?
Posted by: J House | May 8, 2009, 4:49 pm 4:49 pm
Posted by: J House | May 8, 2009 4:49:11 PM “israel didn’t do so hot in its last 2 conflicts in Lebanon. Are you saying it is because they have a lot of gay soldiers?” no i am not saying that, J House. are you?
Posted by: Paul Wall | May 8, 2009, 5:12 pm 5:12 pm
Fascist Hyena—”heterosexual males and females are kept separate from one another in may respects to avoid the kinds of sexual tensions that can affect combat readiness.” sounds like the problem then is with heterosexual males and heterosexual females. gays are already serving, as they always have with full control of their sexual tensions. absolutely not a rational arguement for denying gays the right to serve. they are already serving, Fascist Hyena! they are already controlling their sexual tensions. what’s new?
Posted by: Paul Wall | May 8, 2009, 5:23 pm 5:23 pm
paul | May 8, 2009 2:10:01 PM wrote “Why go to all the trouble of granting gay citizens their equal rights when you can instead placate them with tokenism?” Paul, as a “gay citizen” i would rather have equal rights than a judge on the supreme court. but if you are saying that Obama’s appointing a gay nominee and not coming through on meaningful legislation and executive actions that would indeed be tokenism. and i would be pi**ed off. i don’t care who’s on the supreme court i just want to not be fired for who i am. so i think i agree with you. how many other gay people will i don’t know.
at any rate gay people are in the political market and will vote for the party that comes through on its word.
my guess is that if you could get a republican nominee that would add gays and lesbians to the civil rights act the gay vote will come through. i think the issue of civil rights is so much more important to most gays than getting married (certainly that is the case for gays in the red states).
Posted by: Paul Wall | May 8, 2009, 5:57 pm 5:57 pm
We live at a moment in time when what it means to be human in the sense of being human as has been held for centuries is undergoing re-definition. If the new definition, allowing universal acceptance of homosexual behavior with all rights and priveledges to homosexual persons is codified in law, a revolution will have been accomplished and not one of the traditional sacrosanct beliefs held prior to this re-definition will remain unchallenged. We will have abandoned the Judaeo-Christian foundations of Western Civilization. Will that Civilization survive the seismic shift?
Posted by: Raymond | May 8, 2009, 8:34 pm 8:34 pm
How about a polygamist too?
Posted by: Justin | May 9, 2009, 12:45 am 12:45 am
Polygamy? Sure. Polyandry? Most certainly. Polyamory? How can the Courts deny citizens this? On what grounds? Religion? Surely not. After the Stonewall Riots, the modern movement for homosexual rights took off with an emphasis on homosexual men. Then Lesbian rights became a focus, then, in recent years, an outpouring of empathy and support for transgendered persons. What happened to the “B” in LGBT? Not quite ready for primetime is the “B”. Why? Because Bs are attracted to both sexes and hence polyamorism will be battering the craven courts for approval.
Posted by: Raymond | May 9, 2009, 10:58 am 10:58 am
“That she believes that (gay’s should have the right to marry) because she’s lesbian, and not because she believes the refusal to allow same sex marriage constitutes unconstitutional discrimination, is another matter.”
What the hell is this? By this logic, you’re saying it’s a wrong for an African American to believe in equality because they are an African American even though they may agree that the courts of the past did not intend “equal rights” to include slaves or African Americans?
Clearly the founding fathers intended for our government to be adaptive, and they just as clearly did not intend the abolishment of slavery, equal rights for women and people of other races, and yet here we stand in a country where ALL men (mankind) are created equal.
Clearly homosexuality was not something our founding fathers ever intended to deal with, and whether homosexuals agree with that or not, that doesn’t mean they forfeit their right to ask to be recognized as American Citizens equal to you and every other person in this country, with all the same rights and freedoms.
Posted by: Caleb | May 12, 2009, 1:05 pm 1:05 pm