Aug Sept 2016
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The Advocate

Could Obama Nominate an LGBT Supreme Court Justice?

Pamela Karlan
Pamela Karlan

The Supreme Court vacancy left by the death of archconservative Justice Antonin Scalia has political observers speculating about who President Obama might nominate, raising the question: How about a nominee from the pool of LGBT legal titans?

That would certainly be groundbreaking, and as the Republican leaders of the U.S. Senate vow to block any Obama nominee, perhaps the president would go ahead and push the boundaries. Among potential LGBT nominees, the name that comes up more than any other is that of Pamela Karlan, a professor at Stanford Law School, former deputy assistant U.S. attorney general, and Roberta Kaplan’s co-counsel in Windsor v. U.S., the Supreme Court case that brought down the Defense of Marriage Act in 2013. (Later, during her government service, Karlan helped implement the decision.) Also, as clerk for Supreme Court Justice Harry Blackmun in 1986, she wrote his dissent in Bowers v. Hardwick, in which Blackmun disagreed with the court majority’s decision to uphold sodomy laws.

Karlan was reportedly on Obama’s shortlist in 2009 — usually, only the president and his close associates know for sure who’s on it. That year, he ended up nominating Sonia Sotomayor to replace retiring Justice David Souter. Sotomayor was confirmed by the Senate, making her the first Latina justice on the high court. 

Karlan has been referred to as a lesbian, but she actually identifies as bisexual. In a 2006 speech to the American Constitution Society, she called herself one of the many “snarky, bisexual Jewish women who want the freedom to say what we think, read what we want, and love who we do.” In that speech she called for traditionally progressive groups to “seize back the high ground on patriotism and on love of our country.”

Several publications have mentioned Karlan as a possible nominee and noted her impressive credentials. Cosmopolitan online contributor Jill Filipovic described her as “a voting rights expert” as well as “a respected teacher and litigator who clerked for Supreme Court Justice Harry Blackmun, and has argued multiple cases in front of the Court.” Vox’s Jonathan M. Ladd called her “a liberal legal giant.” Slate writers David Fontana and Ian Bassin deemed her among “the more brilliant legal minds” in progressive circles.

Another Slate contributor, Dahlia Lithwick, listed Karlan along with several other potential picks, including U.S. Attorney General Loretta Lynch, California Attorney General Kamala Harris (who says she's not interested), D.C. Circuit Court of Appeals Judge Sri Srinivasan, California Supreme Court Justice Goodwin Liu, and former Massachusetts Gov. Deval Patrick.

“At this point, everyone on this list may be a long shot, but all would also be worth fighting for,” Lithwick wrote. “Antonin Scalia was a conservative legend. Many of the folks listed here would be the same kind of legend on the left. And, yes, there are a lot of extraordinary women and minorities on this list. And, yes, there should be.”

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