Soon after Justice Souter announced his retirement from the
Supreme Court the nomination speculation game began. Two of the names that quickly surfaced were Kathleen
Sullivan and Pam Karlan and either one of them would represent the first lesbian on the
What would it mean to have a gay person on the Supreme
Court? Nothing and everything of
course. Personal identity shouldn’t play
into a justice’s decision-making process, but it probably does. Justice Scalia can’t help but be
informed by his Catholic identity, and Justice Thomas is informed by being
African American, if only in reverse. Thurgood Marshall was the first African American Justice and he was a strong advocate for equal protection under the law and was an ardent supporter of affirmative action. Would a lesbian or gay Supreme Court nominee be
affected by their identity? Yes,
but it wouldn’t overwhelm their ability to be judicious.
I have a particular perspective on this debate as my
great-grandfather, Louis D. Brandeis was nominated to the court as the first
Jew and the six month long vicious confirmation battle that followed had some
anti-Semitic overtones. Was
Justice Brandeis influenced by his being Jewish? Probably. But the
only time I remember him having to excuse himself from a case in front of the
court was when one of his daughters was arguing it. I had the occasion to meet Justice Ginsburg recently and she reminded me of her article entitled: “Is there a Jewish Seat on the Supreme Court?” I wonder if there will ever be a gay seat?
It may be that gay marriage will rise to the highest court
in the country sometime during the future nominee’s tenure. This fact begs the question of whether
or not a gay person could rule on the issue – the answer is, of course,
yes. Supreme Court Justices
are complete human beings whose intellects are informed by every aspect of
their lives as well as their rigorous understanding of our constitution and
the freedoms guaranteed within.
I don’t know all the people on President Obama’s list but I
hope that Ms. Sullivan and Ms. Karlan are not excluded for any reason aside from
they aren’t the best minds available.