A More Gay Friendly Supreme Court
At least two potential SCOTUS nominees could be big wins for LGBT rights.
By Dylan Matthews
May 5, 2009
Stanford Law Professor Kathleen Sullivan (left) and Solicitor General Elena Kagan (right).
Opposition is already beginning to build around President Obama’s presumed list of Supreme Court nominees, both on the left and right. The idea is that the Obama administration’s desire for diversity on the Court is little more than a quota game, a sop to the African-American, Latino, LGBT, and women voters who make up the Democratic base. As Benjamin Wittes put it in the Washington Post this week, “Identity-oriented groups are part of the core Democratic coalition, so it’s not enough for a Democrat to appoint a liberal. At least some of the time, it will have to be a liberal who also satisfies certain diversity categories.”
Wittes and other critics fail to recognize the degree to which personal experience can nurture a jurist’s zest for social justice. The mere experience of living as a woman, racial minority, LGBT person can make someone more sensitive, more progressive, and, thus, a better justice. But while there are many “firsts” that those on the lists of possible candidates, LGBT groups are pushing to get to the front of the line. Two potential candidates who would be good advocates for LGBT rights are Kathleen Sullivan and Elena Kagan.
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Elena Kagan is the former dean of Harvard Law School and was recently confirmed as Solicitor General. She is the first woman to hold either of those roles. Kagan also has a keen awareness of the difficulties women face in the legal profession. She has addressed these head on, expressing concern at the gap between female law students and attorneys’ ambition and that of their male counterparts. “Women lawyers are not assuming leadership roles in proportion to their numbers,” she lamented in a 2005 lecture. “And that is troubling not only for the women whose aspirations are being frustrated, but also for the society that is losing their talents.”
Kagan has also done some notable work on LGBT rights litigation. Her most significant work is on the Solomon Amendment, legislation that withholds federal funds from colleges and universities when they ban military recruiters because the military’s Don’t Ask, Don’t Tell policy conflicts with many universities’ antidiscrimination policies. As dean, Kagan supported a lawsuit intended to overturn the legislation so military recruiters might be banned from the grounds of schools like Harvard. When a federal appeals court ruled the Pentagon could not withhold funds, she banned the military from Harvard’s campus once again. The case was challenged in the Supreme Court, which ruled the military could indeed require schools to allow recruiters if they wanted to receive federal money. Kagan, though she allowed the military back, simultaneously urged students to demonstrate against Don’t Ask, Don’t Tell.
Throughout the controversy, Kagan maintained contact with Harvard Law School’s LGBT community. She attended a meeting of the student group Lambda and spoke with its leaders. Kagan has shown her commitment to advocating for LGBT rights, and it seems clear that Kagan’s experience battling Don’t Ask, Don’t Tell on campus demonstrates she understands the needs of Harvard Law’s gay and lesbian community.
Obama will have many factors to consider when filling Justice Souter’s seat on the Supreme Court. Sullivan and Kagan (and, as the Politico reported yesterday, Stanford law professor Pam Karlan, who is openly gay), are “qualified” in the traditional sense on paper, but also have the empathy and instinct for justice on behalf of the LGBT community. That is an important factor to consider.
Originally Posted by ralph wiggum
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