Gay Justice

"Federal courts are the ultimate establishment institutions," says Robert Raben, a former aide to the House Judiciary Committee and founder of the Raben Group, a Washington, D.C.-based lobbying firm. "The overwhelming majority of district and appellate court judges have some relationship with a U.S. senator. Local political leaders get nominees into the feeder. It's anything but random -- they need to be from the right law firm, social club, or fund-raising committee."

But there is no organized campaign to usher gay candidates into the court feeder system, a process that is traditionally based more on personal connections. "Basically, we have to grovel like every other group," says William Eskridge, the John A. Garver professor of jurisprudence at Yale Law School. "It's a matter of going to the right school and knowing the right people."

Even then, he adds, the political environment relating to gay issues will have to improve dramatically. "The problem is that right now even pro-gay senators are not going to be pushing a gay person, because Republicans are going to see that as the seat of a potential Supreme Court nomination down the road," Eskridge says.

Which means it may take Obama or a future president to look outside the federal courts for a gay or lesbian nominee. "There's no question Obama is a bold president," says Denis Dison, vice president for communications at the Gay and Lesbian Victory Fund. "[We think] he should be bold on our behalf as well. As a community we should expect him to honor our causes too. And we should do everything in our power to embolden him to do the right thing."

Sotomayor, who has never ruled on a gay-related case, is not necessarily a default ally to gay interests. But Eskridge, who served as one of her faculty advisers when she was a student at Yale Law School, is convinced she would be as pro-gay as her predecessor, David Souter. Sotomayor has employed several gay law clerks, and Eskridge recounted the story of a male clerk whose same-sex partner was in the hospital while he worked for the judge. "Sonia offered to stay with the [hospitalized] partner so her clerk could go home and get some rest," Eskridge recalls. "She's an extremely generous and compassionate person -- and she just gets it."