Editore"s Note
Tilting at Windmills

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May 6, 2009

A DIFFERENT KIND OF BREAKTHROUGH ON THE COURT.... There have been 110 Supreme Court justices. Of that total, zero have been openly gay. Marc Ambinder notes today that this may change fairly soon.

Two of the most qualified center-left jurists in the country are gay, and they've got friends in high places.

Channeling our inner Joy Behars: "Who cares?"

Sexual orientation won't matter to President Obama -- this I do believe, based on several years of reporting on the guy. Unless he's influenced by subconscious patter, he's not going to choose someone because she's gay, and he's not going to remove someone from a list because she's gay.

That does not mean, in any way, that he won't want to think through the ramifications of what the appointment of the first openly gay jurists would entail.

This is not just idle speculation. Kathleen Sullivan, a First Amendment scholar and former dean of Stanford Law School, frequently appears on lists of possible high court nominees, as does Stanford's Pam Karlan, and both are lesbians.

Ambinder, speculating about the possibility, argues, "Journalists will cover the issue reductively, interest groups on all sides won't be able to resist; opponents may well use her sexuality as a weapon against her, and proponents will see every attack against her as motivated by antipathy to homosexuality." Perhaps.

But I hope White House officials remain open to the possibility anyway. At a minimum, I'd like to see conservative activists try to rationalize their intolerance. I expect we'd hear a lot of, "I don't hate gay people, but...."

Steve Benen 2:50 PM Permalink | Trackbacks | Comments (30)

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Justice Anita Hill please.

Posted by: flounder on May 6, 2009 at 2:50 PM | PERMALINK

wait! being gay is just a distraction! lol.....

Posted by: just bill on May 6, 2009 at 2:56 PM | PERMALINK

This will help the economy by creating countless jobs in the wingnut head explosion cleanup industry.

Posted by: e henry thripshaw on May 6, 2009 at 2:58 PM | PERMALINK

This is just what the Republicans are preparing for in putting Jeff Sessions on the Judiciary Committee. Any member of the committee who would discrimiate against a Supreme Court nominee will bring shame and dishonor upon himself and his political party. Sexual discrimination is illegal under the Constitution of the United States. Americans will be paying attention and watching the questioning. If the GOP blocks a qualified woman, a minority, or a homosexual candidate for the Supreme Court, it will be the final nail in the coffin of the GOP.

Posted by: Carol A on May 6, 2009 at 3:06 PM | PERMALINK

Wow. That would kick some serious ass. Given the pace of change on the gay marriage front, I think it's not impossible.

Posted by: bobbo on May 6, 2009 at 3:07 PM | PERMALINK

Right on, e henry. Besides the value of having gay issues represented on the court, I'd just love to watch Fox News go apoplectic.

Though for the same reasons, I'd also like to see Alan Dershowitz, Larry Tribe, or Bill Clinton.

Posted by: anandine on May 6, 2009 at 3:09 PM | PERMALINK

Steve, you are a bit late on this. Several of the gay-specific news sites have already postulated these possibilities.

I can only imagine how you cope with all the email you get, and all of the news websites and blogs you visit daily, but you might want to expand your horizons to some alternative outlets just a little bit.

Posted by: Michael W on May 6, 2009 at 3:11 PM | PERMALINK

It's easy to finish that sentence, Steve:

"but is it appropriate to appoint a member of a special-interest group at a time when cases affecting that person's interests will come before the court?"

I can write Richard Cohen column for him: "It's not that the gay appointee would necessarily be an ideologue, of course-- but how could any person possibly resist the temptation to let their personal feelings affect their rulings on cases that would directly affect them?

"Better to let the cases be decided by white men, who would never, ever let their personal feelings shape their opinions. Samuel Scalito wouldn't rule against gay marriage because he's a flaming homophobe-- he'll rule against it because it's bad law."

The George Will column would, of course, ibnvoke historical strawmen: "It is a well-established precedent that the President does not appoint members of a minority group until after the case law affecting their rights has been firmly established. How much sooner would we have been plunged into the Civil War if Thurgood Marshall had been hearing the Dred Scott case?"

It's colossally insulting, of course-- the notion that a judge can't look solely at what the law says and what precedents have held. But, of course, the people who say that stuff are the ones who make their decisions first, based on personal feelings, and then look for cases that justify their views.

The confirmation hearings for that candidate should have some spectacular outbursts that make Joan Walsh's rebuke to Chris Matthews seem like an episode of Farm Crop Prices Report.

Posted by: Woodrow L. Goode on May 6, 2009 at 3:12 PM | PERMALINK

No NO No No NO!!! It has to be an angry black female, think Angela Davis. The bitch will go to the senate hearings and leave the room reeking from the pools of urine in the various senator's chairs. She will make Clarence Thomas lapse into a drooling coma, that or he will assume his alternate feminine persona and start mincing around like a queen.

Posted by: TulsaTime on May 6, 2009 at 3:12 PM | PERMALINK

"Though for the same reasons, I'd also like to see Alan Dershowitz"
Really? Dershowitz was one of the first to support torture, even before we knew it was being done. Rather than go apoplectic, Fox News would cheer him.

Posted by: bobbo on May 6, 2009 at 3:14 PM | PERMALINK

Remember, a nominee has to get *one* minority vote to get out of committee.

Can you imagine a gay nominee getting even *one* Republican vote on the Judiciary Committee?

Has anyone postulated a strategy to get around that rule should the Republicans see how long they can sit on a SCOTUS nomination?

Anyone want to take bets that Souter is still on the job come the second Monday in October?

Posted by: zmulls on May 6, 2009 at 3:23 PM | PERMALINK

Actually, the fact that a M$M coprophage like Ambinder can cover this pretty straightforwardly shows just how far the country has come.

Sullivan certainly is in the top 5 of constitutional scholars alive today - and probably the top 1 of scholars under 60 - so it'd be a damn crime not to giver her serious consideration.

Posted by: Slaney Black on May 6, 2009 at 3:26 PM | PERMALINK

Joe the plumber won't be able to take his kids to the Supreme Court. Okay, like that matters.

Posted by: Danp on May 6, 2009 at 3:26 PM | PERMALINK

An openly gay high court justice is not unheard of outside the US. Two immediately come to mind:

1) Justice Michael Kirby from Australia
2) Justice Edwin Cameron from South Africa

Both have been very outspoken on HIV issues, and Cameron is HIV+.

Posted by: Joe on May 6, 2009 at 3:34 PM | PERMALINK

There have been 110 Supreme Court justices. Of that total, zero have been openly gay. -- Steve Benen

But didn't someone, recently, called Souter a goat f**ker? Surely, that's even worse (just ask that ex-Senator from PA. What's 'is name. "Man on dog" guy). Though, looking at Souter's beloved house in New Hampshire and its environs, I kind of doubt the goat story. Squirrels, more likely.

And, as long as the candidates are *female*, I think the homophobic objections will be much less than they would be in the case of males. It seems to me that most of the venom -- and violence -- has always been reserved for male homosexuals, not the female ones (well, except England in the Middle Ages, where it was equal opportunity death penalty).

Posted by: exlibra on May 6, 2009 at 3:44 PM | PERMALINK

I've worked with Sullivan in private practice recently, and she is a rather dim bulb. I have no idea how she has managed to compile this reputation. Not impressive at all.

Posted by: Attorney on May 6, 2009 at 3:44 PM | PERMALINK

bobo got there first. Dershowitz?!?! Mr. Sterile Needles Under The Finger Nails? The man is a disgrace.

Posted by: martin on May 6, 2009 at 3:44 PM | PERMALINK

A glimpse into the near future:


Posted by: JW on May 6, 2009 at 3:50 PM | PERMALINK

If the GOP blocks a qualified woman, a minority, or a homosexual candidate for the Supreme Court, it will be the final nail in the coffin of the GOP.

Posted by: Carol A on May 6, 2009 at 3:06 PM.

If the nominee is otherwise qualified, what difference to the GOP does it make if the nominee is a woman, minority, homosexual or any combination thereof? Ginsburg was confirmed by a GOP Senate 96-3. Believe me, with the utter morons out there in the legal academia that Obama could pick from, like Kol, we in the GOP would be more than happy with a nominee who everyone agreed was "qualified" to be a SC Justice.

Besides, like other things liberal, their commitment to "diversity" is subservient to ideology. Obama could pick a qualified woman, minority, homosexual or any combination thereof and every liberal in the country would oppose the nominee if that person were a member of the dreaded Federalist Society.

Posted by: Chicounsel on May 6, 2009 at 3:53 PM | PERMALINK

Uh, Chicounsel, may I remind you of Clarence Thomas? The American Bar Association said he was not qualified for the SCOTUS, and yet we are still stuck with him, the Anita Hill debacle notwithstanding.

Posted by: Michael W on May 6, 2009 at 3:58 PM | PERMALINK

as much of a mentor as Tribe was to Obama, it is a shame that he is now too old to really be a good candidate. had Clinton had more spine when it came to appointments (see Wood, Kimba), he would have nominated Tribe instead of Breyer.

Posted by: zeitgeist on May 6, 2009 at 4:04 PM | PERMALINK

Pam Karlan would be awesome. She's sharp as a razor and has rhetorical gifts.

Whoever said Dershowitz, Clinton, and Tribe, they're all poor choices. Tribe and Clinton are extraordinarily well qualified but too old. Dershowitz would set us back to WWII days on detention issues, as several have noted.

Posted by: Tha Fabulous Mr. Toad on May 6, 2009 at 4:07 PM | PERMALINK

After a quick google search and review of articles, put me in the Pam Karlan camp! Of all of the potential nominee names I have seen, she seems the best, regardless of gender, race, or sexual preference.

She is among the youngest (born 1959) of the names I have seen mentioned. Having a person who is likely to outlast the crap appointed by the Bushes is highly desireable.

A review of information about her indicates that she is very 'liberal'. A very liberal justice is needed and don't let the corporate media's portrayal of Souter as a liberal be confused with the truth that he is still center right.

She appears to be very intelligent and forceful in her presentations. Having a person a liberal heavyweight to counter Scalia and Roberts is highly desireable.

She does not appear to be corporately owned. This would be a major change from ALL of the existing supremes and is very highly desireable.

For the above reasons, she appears to be close to what I would consider an ideal justice. That she is female and a lesbian do not mean shit and should be considered only as tertiary factors in her selection.

Posted by: AngryOldVet on May 6, 2009 at 4:08 PM | PERMALINK

zmulls postulates that an openly gay candidate would never get one rethug vote to get out of committee.

AngryOldVet postulates that any nominee Obama makes will be considered controversial by the reich-wing and Sessions will make efforts to not let any get out of committee.

AngryOldVet postulates that for an Obama nominee to not be 'controversial' to the reich-wing, Obama would have to select from a list provided by The Federalist Society and personally approved by Pat Robertson.

AngryOldVet postulates that 'the louder the reich-wing screams' the happier he will be.

Posted by: AngryOldVet on May 6, 2009 at 4:16 PM | PERMALINK

Pam Karlan is absolutely brilliant, and she'd be an exceptional choice for SCOTUS.

Posted by: American in Exile on May 6, 2009 at 4:19 PM | PERMALINK

Just a slight nit to pick with AngryOldVet (@4:08):

The only people who have a "sexual preference" are the true bi-sexuals, who are equally attracted to either/both sexes. On the Kinsey Scale, I am a Kinssey Six, truly homosexual. I have never been sexually attracted to any female. They do nothing for me in "that" way. Orientation is not the equivalent of preference.

Posted by: Michael W on May 6, 2009 at 4:20 PM | PERMALINK

Pam Karlan has worked with Pres. Obama when he was Professor Obama at Chicago. Obama helped edit an Election Law Textbook that Ms. Karlan helped write. I do believe she's got a better than decent shot at being the choice.

Posted by: Chris on May 6, 2009 at 4:33 PM | PERMALINK


Go do your homework, perhaps focus a little extra on any classes you take that have to do with logic or law. Maybe you'll come across some of these concepts if you go to college. Although you have to graduate from high school first, huh?

Run along now, I think your mother is calling you for dinner.

Posted by: zoe kentucky on May 6, 2009 at 6:51 PM | PERMALINK

Well I think Glenn Greenwald is dreamy, and would look great in the Judicial Robes..As well as tearing Vaffanculo Tony a new one..
A guy can dream, can't he?

Posted by: MR Bill on May 6, 2009 at 7:18 PM | PERMALINK

I expect we'd hear a lot of, "I don't hate gay people, but...."

I expect to hear, "I don't hate gay people; some of my friends are gay; and sometimes I myself pay for gay sex, BUT...."

Posted by: Disputo on May 7, 2009 at 3:08 AM | PERMALINK



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