The Fate of a Potential Gay Nominee for the U.S. Supreme Court

Think the U.S. could ever have an openly gay judge sit on the U.S. Supreme Court?  Sure, maybe in 20-30 years you might say. But what if President Obama were to use his next Supreme Court vacancy to nominate someone who is lesbian or gay?  How would that person be greeted by the rest of the country?

If a new Vanity Fair/CBS News poll is to be believed, most folks would be a-OK with it. A solid 55 percent say that they would be pleased as punch to see an openly lesbian or gay judge sitting on the nation's highest court. If you're interested, the Vanity Fair poll also found that majorities of folks would be comfortable with gays and in the military, an openly gay President, a gay Secretary of State, a gay Commissioner of Baseball, and a gay college quarterback. (Guess it's a good thing this poll didn't ask whether folks would be OK with a gay Jesus.)

All good indicators that society is increasingly open to seeing LGBT faces (or, well, at least LG faces) in very public positions. But the question of the Supreme Court nominee is particularly interesting and timely, given that by most every expectation, President Obama is going to face at least one, if not two or more, vacancies on the U.S. Supreme Court. And that's all before his first term in office is finished.

Most everyone expects Justice John Paul Stevens to take his nearly 90-year-old tennis playing robes and join the Gold Watch club soon. Justice Ruth Bader Ginsburg is also the target of continued speculation of retirement rumors, given her health. And let's not forget that Justices Kennedy, Scalia, and Breyer are all over 70 years old. Sure, they show no signs of retirement, but if any one of them announced their desire to leave the court, most folks wouldn't necessarily be surprised.

So all that said, wouldn't it be interesting to see Obama break the glass ceiling and nominate someone who is openly gay or lesbian?

There's certainly a plethora of qualified candidates. In fact, last year, when Justice David Souter announced his retirement, there was brief speculation that two candidates making the rounds were Kathleen Sullivan and Pam Karlan. Both are law professors at Stanford Law School (Sullivan is also a former dean of the law school), and both are openly lesbian. Both have impeccable legal resumes, and both have been celebrated for having brilliant legal minds. (Karlan, for instance, was given a rousing endorsement from a University of Pennsylvania law professor, who said that she'd not only break the gay glass ceiling, her gift with language would influence U.S. law for decades, if not centuries, to come.) Surely both could be on short lists the next time a nomination comes around.

Sure, on the surface, it might sound like an incredibly polarizing thing for Obama to do. We could barely get health care reform through Congress, and issues like passing an Employment Non-Discrimination Act (ENDA) or a repeal of "Don't Ask, Don't Tell" continued to be mired in delays. How could a gay nominee mine the political battlefield that is Washington these days?

Cue Richard Just at National Public Radio. Last year, when Souter announced his retirement, Just said that if Obama nominated an openly gay or lesbian person for a U.S. Supreme Court seat, it might just help his administration, and put opponents in a tricky bind.

"History suggests that the country is willing to accept Supreme Court nominees from minority groups even at a relatively early stage in their integration into American political life," Just writes. "When Louis Brandeis was nominated to the court in 1916, anti-semitism was still pervasive. When Thurgood Marshall was nominated in 1967, the country was still in the throes of the civil rights struggle. Yet both men were confirmed."

Could the same work for a gay or lesbian nominee, too? Or, perhaps a better way of asking the question: can 55 percent of Vanity Fair/CBS News poll respondents be wrong?

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