Washington's Guessing Game

Pundits and politicians wonder who the next Supreme Court justice will be, while LGBT observers consider impact of choice on gay issues

Looking at the list of possible nominees to replace retiring U.S. Supreme Court Justice John Paul Stevens is one of D.C.’s favorite guessing games. Three names — Solicitor General Elena Kagan and appellate judges Diane Wood and Merrick Garland — are considered by many observers to be among the most likely possibilities.

Elena Kagan
Elena Kagan
(Photo by Courtesy Office of Solicitor General)

In the days since the announcement, though, other names have been confirmed as being under consideration, including Homeland Security Secretary Janet Napolitano, Michigan Gov. Jennifer Granholm (D) and former Georgia Supreme Court Chief Justice Leah Ward Sears.

All six were considered during the White House process that resulted in the nomination of now-Justice Sonia Sotomayor.

Kagan, the former dean of Harvard Law School has the most controversial – and some would say supportive — experience with LGBT issues. While at Harvard, Kagan signed her name to a brief in the Supreme Court supporting an eventually unsuccessful challenge to the Solomon Amendment, the congressional law allowing schools to lose certain funding if they refuse to allow military recruiters equal access to the college’s recruitment services. Many law schools opposed the law because the military’s “Don’t Ask, Don’t Tell” policy conflicts with their own nondiscrimination policies.

Wood, a judge for the U.S. Seventh Circuit Court of Appeals based in Chicago, has a supportive record on LGBT issues. In a 2006 case, Wood wrote that a university could permissibly enforce a nondiscrimination policy that includes sexual orientation by refusing to give certain benefits to student organizations that refused to abide by the policy. This situation has happened at several law schools with regards to the organizational status of chapters of the Christian Legal Society, which will not agree to include sexual orientation in their nondiscrimination policy. The U.S. Supreme Court is to hear a case on this question on April 19.

Garland, a judge for the powerful D.C. Circuit Court of Appeals, is known to be a more moderate judge than Wood. His nomination appears to be the closest to a consensus nomination, although he would be unlikely to garner many Republican votes. On LGBT issues, Garland doesn’t have much record to point to, having written nothing of significance on LGBT issues during his time on the appellate bench.

Granholm and Napolitano have experience dealing with LGBT political issues as governors of Michigan and Arizona, respectively, with both opposing constitutional amendments limiting marriage. Sears has a history that includes support for LGBT issues, having authored the opinion striking down Georgia’s sodomy law.

Finally, the names of two law professors at Stanford Law School, Pam Karlan and Kathleen Sullivan, have been bandied about – although it is not clear whether either is under serious consideration by the White House. Both have been identified by the Victory Fund as being openly lesbian. Two others, Kagan and Napolitano, have faced questions about their sexual orientation in the past, but neither has said that she is a lesbian. –Chris Geidner

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