With the death of U.S. Supreme Court Justice Antonin Scalia, a longtime adversary of LGBT Americans, President Obama has a vacancy to fill. Republican leaders in the U.S. Senate, the body that votes whether to confirm a president's high court nominees, are vowing to block any Obama appointment, saying they'd rather wait for the next president to select a justice — and they're hoping the next president will be a Republican. Democrats, however, are saying such a long wait would be unprecedented and potentially disastrous, and Obama has pledged to submit a nominee no matter what. So, Mr. President, how about considering a jurist who's lesbian, gay, bisexual, or transgender — or, like some already on the court, at least an ally?
See our recommendations in each category on the next pages.
Our choice among lesbians is Kathleen Sullivan, who was mentioned as a possible nominee in 2009, when President Obama nominated Sonia Sotomayor. Sullivan is a partner in the New York office of the Quinn Emanuel Urquhard & Sullivan law firm and the chair of its appellate practice; she has been widely praised for her skill in arguing appeals. She has argued nine cases before the Supreme Court and numerous others in various federal appellate courts. “Sitting in courtrooms and conference rooms with Kathleen, I’ve felt at times the way you feel when you watch a virtuoso musician or an elite athlete at the top of her game," Russell Bonds, associate general counsel and head of litigation at the Coca-Cola Co., one of her clients, told Super Lawyers Magazine in 2014. Sullivan is also a former dean of Stanford Law School, and she has taught at Harvard Law School as well as Stanford.
In the gay category, we nominate Vaughn Walker, who as a U.S. district judge in 2010 struck down California's Proposition 8, which had revoked marriage equality in the state, then saw his ruling upheld by a federal appeals court and the Supreme Court. "Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license," Walker wrote in his decision. National Center for Lesbian Rights legal director Shannon Minter called the ruling "the most comprehensive, detailed decision addressing the constitutional rights of same-sex couples to affirmative recognition and support ever to be issued by a federal court." Those defending Prop. 8 said Walker should have recused himself from the case because he is gay; they claimed that made him biased. Walker did not publicly acknowledge that he's gay until a year later, after he had retired, but he said he never considered recusing himself. A judge's race, gender, sexual orientation, or any other characteristic shouldn't affect the way he or she rules, Walker said. We wonder if a Supreme Court nomination would tempt him out of retirement.
Like Kathleen Sullivan, Pamela Karlan was mentioned as a potential Supreme Court nominee in 2009. She too has impressive credentials: She is a professor at Stanford Law School, was a deputy assistant U.S. attorney general, and was 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 has described herself as a member of the sisterhood of "snarky, bisexual Jewish women," while others have called her a "liberal legal giant."
"Once a Pariah, Now a Judge" is how The New York Times headlined a profile of longtime transgender rights activist and attorney Phyllis Randolph Frye, who became a Houston Municipal Court judge in 2010, making her the first openly transgender judge in Texas. Frye was a lead organizer of the first gay rights march on Washington, held in 1979, and the following year she saw the culmination of four years of her efforts to persuade the Houston City Council to repeal the city's ban on cross-dressing. In the 1990s she organized conferences on how the law affects transgender people and developed many legal theories. “Caitlyn Jenner stands on the shoulders of somebody like Phyllis Frye,” Shannon Minter, legal director for the National Center for Lesbian Rights, told the Times. “Phyllis is the grandmother of our movement.” She still practices law, representing transgender people exclusively, as her judgeship is part-time. How about a full-time assignment in Washington?
As U.S. attorney general as well as earlier in his legal career, Eric Holder was an eminently reliable ally of LGBT Americans. In his role as attorney general, heading the federal Department of Justice, he carried out the Obama administration's directive to cease defending the Defense of Marriage Act, and last year, before the Supreme Court ruled for nationwide marriage equality, he wrote an opinion column saying "the time has come" for such a development, and the Justice Department filed a friend of the court brief in the case, arguing on the side of equality. He also ruled that the Civil Rights Act of 1964, in banning discrimination based on sex, bans discrimination based on gender identity. And he denounced the Boy Scouts of America's gay-exclusionary policy, which the organization has now repealed. Before he was attorney general, a post he held from 2009 to 2015, he was a civil rights lawyer with an excellent record on LGBT issues. And as a deputy attorney general in President Clinton's administration, he argued for expansion of federal hate-crimes law, something that finally came to fruition during Obama's presidency. Sources have already speculated that he's on Obama's shortlist for Supreme Court; nobody knows for sure who's on it except the president and his closest associates. But it's clear that Holder would fill the bill as an "ally" pick.