The death of former Supreme Court nominee Judge Robert Bork draws attention to the current configuration of the Court and the changes that may occur in President Obama’s second term. President Ronald Reagan nominated Bork in 1987, but after protests by civil and women’s rights advocates, the Senate rejected his confirmation. Bork would have brought a decidedly conservative and constitutional purist perspective to the bench.
Presidents have long sought to “shape” the ideology of the bench in the hope that the rulings will lean more frequently left or right. Appointing Supreme Court justices is as important a task as there can be for a president. Justices receive lifetime tenure and therefore have more influence over a generation of people than any president. During his first term, President Obama appointed two justices and it is likely that in his second term he will be naming more. If Obama does have an opportunity to appoint a third justice, he should give strong consideration to nominating a qualified member from the LGBTQ community.
Appointing a qualified member from the LGBTQ community increases the diversity of thought on the bench. A justice’s job is to adjudicate the constitutionality of legislation. That job is based on their interpretation of the applicability of the law and their interpretation cannot be divorced from their life experiences. Justices are informed by the prism of their experiences and that seeps into the application of the law. It is inevitable that no matter how matter of fact or logical a justice may be, the law is grey at best and the justices experience impact that grey matter. Any argument against considering gender, race, or sexual orientation in the decision making process ignores this fact. The fact of the matter is those people who argue that “we should pick the most qualified person” usually mean “we should pick the most qualified person that thinks like me.”
There is no doubt that issues concerning individual and civil liberties will be adjudicated in the courts over the next few years and it would seem to make sense that those who have been impacted by these issues would be represented on the bench.
During Obama’s second term, Justices Ruth Ginsburg and Anton Scalia could retire, as well as Justice Anthony Kennedy. If either of those justices leave, the dynamic of the court will change. If you look at the configuration of the Court, it very much resembles today’s electorate. The country is fairly split down the middle in its politics and everyone waits to see how the independents will swing vote.
President Bush appointed Chief Justice Roberts and Justice Alito, and by everyone’s scorecard that made the Court right leaning. Roberts, Alito, and Scalia join with Justice Clarence Thomas to form the conservative wing of the court. Obama appointees Justices Sonia Sotomayor and Elena Kagan join Ginsburg and Justice Stephen Breyer to form the more liberal wing. Kennedy, who was appointed by Reagan after Bork was rejected by the Senate, is assumed to be the swing vote.
There are qualified members of the LGBTQ community either on the bench or awaiting confirmation. Obama has nominated eight “out” judges to the federal bench. Justice William Thomas is awaiting confirmation to assume his seat for U.S District Court for the Southern District of Florida. Federal prosecutor Pamela Chen was nominated to the federal bench in the Eastern District of New York.
The court is fairly diverse along the lines of gender and race. Now, if given the opportunity, the President can add to that richness by appointing the first Supreme Court Justice from the LGBTQ community.