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A More Gay-Friendly Supreme Court

Elena Kagen

Stanford Law Professor Kathleen Sullivan (left) and Solicitor General Elena Kagan (right)

(AP Photo/Charles Dharapak)

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.”

See Dylan Matthew’s more recent article called “What Elena Kagan’s Role in the Harvard Military Recruitment Ban Really Says About Her”

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.

On paper, Sullivan is exceptionally well qualified for the seat. She is a Marshall scholar and former Stanford Law dean who constitutional law legend Laurence Tribe once called “the most extraordinary student I had ever had.” Sullivan is both an academic expert on constitutional law who wrote a widely used textbook on the subject and an experienced appellate lawyer. She has argued before the Supreme Court on cases involving everything from the McCain-Feingold campaign finance reform legislation to New York and Michigan state laws banning interstate wine shipments.

But some of Sullivan’s most notable work is also her most personal. She worked with Tribe on the landmark 1986 sodomy case Bowers v. Hardwick, where she argued on behalf of a man in Georgia, Michael Hardwick, who was arrested for having consensual sex with another man. While she lost that case (it was reversed 17 years later in the infamous Lawrence v. Texas), her later work in gay rights was more successful. She wrote an amicus curiae brief on behalf of a group of law professors advocating for marriage equality in the 2008 case, In re Marriage Cases that eventually led to California briefly allowing gay and lesbian couples to marry before it was overturned last fall by Proposition 8.

Sullivan herself is openly gay. She would likely be committed to gay and lesbian equality regardless of her own sexual orientation, but her record on LGBT issues is exceptional even within legal academia. As an associate justice, Sullivan would thus advocate for gay and lesbian equality with zeal that a straight justice likely could not match. Her background as a lesbian would help make her an effective and benevolent justice.

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.

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