GENERAL FEATURES
Is The Supreme Court Ready For Gay Judges?
The nomination of Elena Kagan to the Supreme Court and the absence of gay jurists in the federal judiciary has sparked debate about the invisibilty of gay people throughout the judicial appointments process.
While the U.S. Senate embarks on President Obama’s hearings for the
nomination of Elena Kagan to the Supreme Court, it is worth recognising that if
it’s approved, this will be the first time in history that three female
Justices will sit together on the Court.
The Court consists of an African-American, a Latina and Kagan would be the third Jewish
addition.
As diverse as this collection would be, it would still lack an openly gay or
lesbian Justice, leaving gay people along with Asian Americans as one of the
last minority groups not represented in the Court’s membership.
Although in recent times President Obama nominated a gay man, Edward DuMont
to serve on the U.S. Court of Appeals for the Federal
District, no openly gay man or woman has ever served on one of the
intermediate federal appellate courts.
This troubling reality is significant because (with Kagan as the exception) almost
all of the nominees to the Supreme Court over the last forty years have been
promoted from those courts.
There are currently over six hundred federal district court judges that the
absence of gay jurists at the trial level is also conspicuous.
It is very questionable that the federal judiciary remains one of the last
important institutions where gay people seem ‘not to be welcomed’ at a time
when there are several openly gay individuals serving in America’s state
legislatures, leading universities and corporate boardrooms.
Many citizens would also suitably question the authenticity of rulings
issued by such a homogeneous group of judges, due to the fact that such low
numbers would be clear evidence of discrimination in the process of judicial
appointments.
This state of affairs is disconcerting given that the primary enforcers of
federal constitutional law, the federal courts, have consistently played an essential
role in protecting the rights of minorities throughout the United States.
In a recent Gallup poll, 85% of Americans believe that gay people should
have equal employment opportunities and the majority of ‘Fortune 500’ companies
have policies in place that protect lesbians and gay men from discrimination.
When it comes to sexual orientation, however, the makeup of the federal
judiciary remains fundamentally resistant to change.
More importantly, it is the federal judiciary that will soon determine the
constitutionality of the Defense of Marriage Act and of California's constitutional amendment
banning same-sex marriage.
The author of “From The Closet to the Courtroom”, Carlos Ball states that “as
the hearings on President Obama's latest Supreme Court nominee begin, it is
important that we remind our leaders that having a diverse bench does not end
with considerations of race and gender”.