Courting Change

Courting Change

As Obama seeks to bring empathy and real-world experience to the Supreme Court, he should consider nominating an openly gay advocate for gay rights.


Justice John Paul Stevens is stepping down, and President Barack Obama has a second Supreme Court nominee just as his second year in office begins. The conventional wisdom is that Obama should try to select someone his Republican adversaries in the Senate will not dare to filibuster–a moderate, middle-aged white man like Judge Merrick Garland of the DC Circuit, or a thoroughly vetted appeals judge with lots of conservative friends from the University of Chicago like Judge Diane Wood.

That would fit the Jimmy Carter version of Barack Obama, which predominated until his fighting healthcare reform triumph shifted the comparisons over to the Lyndon Johnson column. President Obama would do well to remember another of Johnson’s victories–appointing famed NAACP litigator Thurgood Marshall to the Supreme Court. Johnson himself remembered it as one of his proudest moments–doing something, he said, for the people who had done so much to register and vote and represent themselves. Johnson, it is said, felt guilty, because the executive branch had not done enough to protect African-Americans in their rights, even after passage of the Civil Rights Act.

He did better than he knew. Even after the great triumphs of the civil rights movement were over, Marshall "represented" the human reality of African-Americans in the hallowed chambers of the Supreme Court. And he did it in the most profoundly human way: through stories. Marshall’s way, which came to light only after his death, was to call up experiences from his own life to drive home a point during discussions on cases. In her legendary eulogy, Republican appointee Sandra Day O’Connor told her readers of how Marshall’s description of life under Jim Crow affected the courts. Marshall’s biographer Mark Tushnet even credits the crucial support of Justice Harry Blackmun to salvage some version of affirmative action in the landmark Bakke decision to Marshall’s storytelling.

It’s not 1967 any more, but there is a movement of people long marginalized and demonized in American society, doing their best to use this great democracy to represent themselves: America’s gay and lesbian men and women. Like the racial civil rights movement that inspires them, the gay movement marches for justice, demonstrates for equal rights, seeks to marry and to serve on equal terms in the United States military. Like the African-Americans who so impressed Johnson, gays and lesbians register in huge percentages to vote and raise impressive sums of money to secure their rights in the democratic process. Like the movement Marshall so ably represented, they petition the Supreme Court to extend to them equal justice under the law, recently initiating a case for the right to marry indistinguishable in theory and precedent from the 1967 interracial civil rights case Loving v. Virginia.

Appointing an out gay or lesbian to the Supreme Court would once again open the closeted chambers to the truth of lives the current occupants can not themselves adequately know. There is a reliable story about Justice Lewis Powell, who cast the deciding vote in Bowers v. Hardwick, the case that kept sodomy a crime and which the Court reversed seventeen years later in Lawrence v. Texas. Powell later said he regretted his vote in Bowers; he just never knew any gay people, he said in his defense. Five years before Justice Powell condemned American gays and lesbians to the continued criminalization of their sex lives, his law clerk had been Paul M. Smith, now the openly gay co-chairman of the board of Lambda Legal–the LGBT equivalent of the NAACP’s Legal Defense Fund. How differently things might have gone had Justice Powell had a colleague he knew to be gay when the court considered the matter in 1986.

The widely reported case to establish gays’ right to marry, Perry v. Schwarzenegger, which recently went to trial in the federal court in California, revealed graphically the power of gay and lesbians telling their stories. When the plaintiffs, one gay and one lesbian couple, finished telling the stories of their efforts to construct respectable, loving lives in a state that forbids them to marry to a courtroom filled with mostly straight media and lawyers, there was not a dry eye in the house.

Legislation comes and goes, but, as they say, the Supreme Court is infallible because it is final. This could be Barack Obama’s Lyndon Johnson moment. There’s even a nominee who fits perfectly his expressed desire to broaden the Court’s demography by adding someone who has engaged in the practice of law, rather than a cloistered academic. Someone of the highest stature in the bar association’s Talmudically constructed ranking system, a lion in his prestigious law firm and a man with extensive experience in Supreme Court litigation–Paul M. Smith. Just as Congress would be considering the appointment, Smith is to be the recipient of the ABA Thurgood Marshall Award at the annual ABA meeting this August–a prize held by sitting Supreme Court Justice Ruth Bader Ginsberg.

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