Politics with Marc Ambinder

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May 6 2009, 12:30 pm by Marc Ambinder

A Justice Who Is Gay

Two of the most qualified center-left jurists in the country are gay, and they've got friends in high places. 

Channeling our inner Joy Behars: "Who cares?"

Sexual orientation won't matter to President Obama -- this I do believe, based on several years of reporting on the guy. Unless he's influenced by subconscious patter, he's not going to choose someone because she's gay, and he's not going to remove someone from a list because she's gay. 

That does not mean, in any way, that he won't want to think through the ramifications of what the appointment of the first openly gay jurists would entail. Obama likes to ask his counsels about precedent and history and second-order effects.  He will leave the deliberations to the constellation of officials who are participating in the selection process, including his voracious chief of staff, Rahm Emanuel, and Michael Strautmanis, a long-time Obama counselor who works for Valerie Jarrett. 

You don't have to be Rep. Steve King -- who here implies that gay people wouldn't be bashed so long as they don't tell people about their sexual orientation -- to have a vague sense of that sexuality shouldn't matter at all, that sexual orientation should be irrelevant as a way of judging someone for any job, anywhere. Most Americans either live in this mental framework or are moving here.

But if Obama makes the choice, what ought to happen will yield to the reality of politics, the structural bias of the news media and the sociology of Congress. 
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Absent another storyline -- the FIRST HISPANIC, a MAJOR ideological shift on the court -- if Obama selects a gay person, the gay thing becomes the second thing that most people will know about the nominee. (The first, as pointed out by a White House official, is that this person has Obama's imprimatur. This didn't work for an unpopular President Bush, but it might work with Obama.)

The Obama White House has studiously avoided engaging with Republicans on culture war tropes. Believe it or not, it's one of the main reasons why the White House hasn't done more in public for Dawn Johnsen. Given that Rahm Emanuel is running the vetting process, I can't imagine that the White House won't include the upside/downside potential for this type of a rhetorical battle in their calculations and recommendations.  

Obama might ignore this, but the White House won't. From their lips to the ears of anyone who asks: Rahm and David Axelrod don't want the GOP base riled up in 2010. 

In the end, the nomination of a gay Supreme Court Justice might be the perfect way to engage the public, and I think the upside potential is greater than the downside risk.  What better way to advance the cause of the public normalization of homosexuality than to appoint a gay justice to the court without referencing her sexuality?  

If, on the other hand, the White House nominates a gay justice and makes a big deal about it and then becomes defensive when social conservatives object, they've undermined their underlying social engineering.

Journalists will cover the issue reductively, interest groups on all sides won't be able to resist; opponents may well use her sexuality as a weapon against her, and proponents will see every attack against her as motivated by antipathy to homosexuality.  

In any event, almost every political actor involved in this decision will have to confront the question of gays and society.

Not too long ago, being (openly) gay was enough to disqualify a Clinton appointee, James Hormel, from clearing Congress to be the ambassador to Luxembourg.  Clinton used a recess appointment.  George Bush's openly gay appointee was given the AIDS portfolio -- not insignificant, but not outside the gay Republican ghetto either.

A side note, as pointed out by someone smart: single, accomplished, older women are automatically assumed to be lesbians -- witness the demonization of Janet Reno, Janet Napolitano and others -- while openly gay female professionals deal with stigma directly.  Is society ready to be gay blind?  

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Comments (7)

NYC_Charles

Your point about people assuming older single women are lesbians made me think of a related question - why don't we think older single men are gay? Justice Souter has been a lifelong bachelor - why aren't there rumors that he's gay? Or is it just the power issue with women, where people want to find some reason to attack them so they can pretend they aren't sexist (while admitting they are homophobic)?

Rhoda

This is not going to happen.

I honestly think that the blowback on this is going to be extensive. In 2010, coupled with the expansion of gay marriage, President Obama has put a gay justice on the bench he will have shot his party in the foot and ruined 2010 for them. 2012 will in large part include a fight on cultural issues.

Right now: people are in crisis so the gay marriage debate isn't catching fire off line. But it will be an animating force in the 2010 election IMO. And for all these steps forward, there will be pushback.

As popular as the President is; this IMO would be a bridge too far and the perfect opening to reignite culture wars. The beauty of the last 100 days has been how this has not happened; and the fact that a national cultural debate hasn't occurred has allowed states to push further to the left. That won't be possible if the Obama team nominates a gay justice in my view; fair or not that is the reality.

You only have to look at Cali: Prop 8 did mean something beyond an organizational failure of the LGBT community I think.

freaktown (Replying to: Rhoda)

so you're saying an otherwise perfectly qualified nominee should be prevented from getting a job because they're gay?

that's discrimination. and its pretty clear cut. Would you say the same thing if a black nominee or a woman nominee was prevented from getting their job based upon their skin color or sex? No. So why should their orientation be any different?

i don't see why you think there would be excessive blowback. The only folks who would want to make an issue out of it are the homophobes of the social conservative right. And if they did make an issue out of it, they would only expose themselves even further. There's a reason that only 20% of the country identifies as republican and thats one of them. There's a meanness and a disgusting disdain for anyone different permeating that party. And they're not going to endear themselves to voters by trying to make an issue out of something thats a)perfectly legal and b) not at all relevant to the job they'd be doing.

thefoulness

So exactly who are you talking about, Ambinder? Clearly someone you think is a potential nominee is gay. And clearly that person is a woman. And yet despite that fact that this gay woman hasn't been nominated, you are coming out against her nomination, without saying her name? Are you trying to intimidate the White House? Or the potential nominee? Otherwise, what is the point of this?

Come on, this is beneath you, and The Atlantic.

mdgiardina (Replying to: thefoulness)

Ambinder acknowledges who is talking about with the link in the first sentence of his article - Kathleen Sullivan and Pamela Karlan, both of whom we would consider to be on at least the long-list of potential nominees. Political considerations for 2010 and beyond aside (which I believe will unfortunately play a role in the ultimate selection), I think many who follow the legal community would agree that Karlan is perhaps the most brilliant center-left legal thinker under the age of 60 in the U.S. today. There are many positives be made about a Sotomayor nomination -- and righlty so -- but for my money, I'd take Karlan over anyone in the current crop. She's that good.

Andrew Perez

Media Matters is criticizing Ambinder for "whitewash[ing] GOP anti-gay bigotry." link http://mediamatters.org/blog/200905060026

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