April 9, 2010 at 4:25 pm EDT | by Lou Chibbaro Jr.
Lesbian professors resurface as possible Supreme Court picks

Kathleen Sullivan (Photo courtesy of Stanford University)

The announcement Friday that Supreme Court Justice John Paul Stevens will retire at the end of the court’s term has renewed speculation that President Obama might consider two constitutional scholars who are lesbians as Stevens’ successor.

Stanford University Law School professors Kathleen Sullivan and Pamela Karlan were among several candidates said to have been considered by Obama one year ago when the White House conducted a search to replace former Supreme Court Justice David Souter.

Obama chose U.S. appeals court Judge Sonia Sotomayor as Souter’s replacement, making her the high court’s first Hispanic member.

As speculation this week swirled over White House plans for selecting Stevens’ successor, three possible leading nominees emerged. The Associated Press reported that U.S. Solicitor General Elena Kagan, 49, and federal appeals court judges Merrick Garland, 57, and Diane Wood, 59, were the leading candidates.

But political pundits familiar with the Supreme Court noted that that Sullivan and Karlan were among the favorites of liberal advocates who want Obama to name a progressive judicial activist to the court to help counteract the court’s majority conservative wing.

“I think if the president believes that either Professor Karlan or Professor Sullivan were the best qualified for the position that he would have no problem nominating them,” said Denis Dison, spokesperson for the Gay & Lesbian Victory Fund, a national group that advocates for the election and appointment of qualified LGBT people to public office.

“The thing to guard against for our community is the notion that sexual orientation alone should be a barrier to their consideration for a Supreme Court seat,” he said.

Some political commentators speculated that Obama most likely would seek a less controversial, center-left nominee rather than Sullivan or Karlan. They also noted that Obama’s nomination of a new Supreme Court justice comes on the heels of his bruising battle in the Senate over the health care reform bill. Public opinion polls show his and the Democrats’ popularity at an all time low going into the mid-term elections this fall.

Senate Republicans are expected to oppose almost anyone Obama nominates for the high court post, and pundits speculated this week over whether the president would be willing to expend greater political capital on a “lightening rod” nominee.

Sullivan is considered a nationally prominent scholar and teacher of constitutional law and is the author of the nation’s leading casebook on constitutional law, according to her biography posted on the Stanford University web site. The site also says she has published numerous articles in law journals on federalism, religion, speech, equality and constitutional theory. She served as dean of the law school from 1999 to 2004.

A separate biography of Karlan on the law school’s web site says she, too, is a recognized scholar and award-winning teacher at the school, as well as founding director of the law school’s Supreme Court Litigation Clinic. It says Karlan is also considered one of the nation’s leading experts on voting and the political process. She has served as a commissioner on the California Fair Political Practices Commission and as assistant counsel and cooperating attorney for the NAACP Legal Defense Fund.

Both women have spoken out on LGBT rights issues and are publicly identified as members of the LGBT community.

Lou Chibbaro Jr. has reported on the LGBT civil rights movement and the LGBT community for more than 30 years, beginning as a freelance writer and later as a staff reporter and currently as Senior News Reporter for the Washington Blade. He has chronicled LGBT-related developments as they have touched on a wide range of social, religious, and governmental institutions, including the White House, Congress, the U.S. Supreme Court, the military, local and national law enforcement agencies and the Catholic Church. Chibbaro has reported on LGBT issues and LGBT participation in local and national elections since 1976. He has covered the AIDS epidemic since it first surfaced in the early 1980s. Follow Lou

  • I think a lesbian on the court would be good, but my hope is that Obama picks a woman. I would like to see at least 4 women on the court. Preferably 5 and eventually a woman as chief justice.

  • Michael @ LeonardMatlovich.com

    “Applying the strong deference traditionally afforded to the Legislative and Executive Branches in the area of military affairs, the court of appeals PROPERLY UPHELD [Don’t Ask, Don’t Tell]. [The bar on gays serving openly is] RATIONALLY related to the government’s LEGITIMATE interest in military DISCIPLINE and COHESION.” – Elena Kagan, Obama’s Solicitor General, in a successful 2009 brief asking the Supreme Court to deny certiorari in the appeal of DADT victim [& arrestee at the White House with Dan Choi] Jim Pietrangelo.

    “[Don’t Ask, Don’t Tell is a] wrong [that] tears at the fabric of our own community.” – Elena Kagan, Dean of Harvard Law School, 2005, regarding her continuing ban of military recruiters.

    “[Don’t Ask, Don’t Tell is a] DISCRIMINATORY employment policy. I BELIEVE THAT POLICY IS PROFOUNDLY WRONG—both unwise and unjust—and I look forward to the day when all our students, regardless of sexual orientation, will be able to serve and defend this country in the armed services.” – Elena Kagan, Dean of Harvard Law School, 2006, after the Supreme Court rejected a suit, for which SHE was a co-plaintiff, against the Solomon Amendment which denied federal funding to any school barring recruiters.

  • Re: Michael,

    I do not see how the first statement by Kagan is contradictory to the second two. Simply because she believes the policy to be morally wrong or unjust, does not change whether it is legal. Are you under the impression that people who serve in the Executive Branch must always follow their personal feelings when doing their job? God, I can only imagine how horrible that might have been under the Bush Administration.

  • I think President Obama could do himself a lot of good by naming a gay or lesbian person to the Supreme Court. It would certainly help him mend the relationship he has with the LGBT Community which has certainly become strained at best. What happened to all of his “Fierce advocate for the gay & lesbian community” retoric? He has defended DOMA and done nothing to oppose the reversal of marriage equality in California and Maine. He did nothing to advance Hate Crimes legislation, apart from signing it when it had already passed. He has not been advocating in favor of bills such as the Employment Non-Discrimination Act, the Domestic Partnership Benefits & Obligations Act, the Uniting American Families Act or the Repeal of Don’t Ask Don’t Tell, apart from a brief reference in a state of the union speech. His sole focus has been healthcare reform, which is a fine goal, but when it came time for final passage, I didn’t hear him object when the gay & lesbian provisions were dropped from the bill. He did not appoint any gay or lesbian people to his cabinet, and to date, he has not appointed any openly gay or lesbian people to the Federal judiciary. Diane Wood or Merrick Garland would both be great picks, as would solicitor general Elena Kagan, but can we really expect Obama to take this action given his past record as a very very very weak advocate for our community? Sorry, but I don’t think I will get my hopes up again.

  • to me naming someone who is gay matters little. in fact, i’d much rather have another stevens than the gay equivalent of a clarence thomas. can you imagine? yuck!

  • I believe an openly gay nominee would be filibustered into oblivion because conservatives would fear judicial activism on gay issues.

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