Who Will Be the First Openly LGBTQ Supreme Court Justice?

Supreme Court experts say it's likely we'll see an out and proud justice within a decade. They looked through the country's likeliest prospects to tell us who could make history.

by Steve Friess
Oct 18 2016, 4:00am

Photo of the US Supreme Court via Matt Wade

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Billionaire Peter Thiel will probably never be a Supreme Court justice. It's a laughable prospect, despite reports, swiftly denied, that surfaced last month that Donald Trump had promised him a seat. The PayPal founder, after all, has never practiced law, once wrote that women's suffrage was antithetical to a "capitalist democracy," and promotes fringe ideas like cryonics and paying young geniuses to skip college.

One once-disqualifying reason that no longer seems to apply: Thiel is openly gay. That this is a non-issue is astonishing, historically speaking, and highlights the fact that an out LGBTQ justice is now not only possible but possibly imminent. With three sitting justices over the age of 78—setting aside whether President Obama's stalled Merrick Garland nomination will be withdrawn after the election—court-watchers expect our next president to have multiple appointments.

"Until very recently, no president would have taken the chance, but now it's certainly plausible," University of Michigan law professor Richard Friedman said. "A president may decide this is an important statement to make."

But what LGBTQ legal eagle will become enshrined as an instant American icon, alongside Justices like Louis Brandeis, Thurgood Marshall, Sandra Day O'Connor, and Sonia Sotomayor? Is the first openly LGBTQ justice already in public life?

"Absolutely," said Sam Erman, a law professor at the University of Southern California. "Whoever it is, it's someone who has already made an excellent legal career," agreed Daniel Ortiz, Supreme Court Litigation Clinic director at the University of Virginia. "The chances are good that that person is already on a bench somewhere."

Supreme Court nominees today come almost without exception from academia or the federal appeals bench. Of the eight sitting justices, only Elena Kagan, a former Harvard Law School dean, was never a judge, and she served as the White House's chief lawyer at the Supreme Court. Nominees for the lifetime position also tend to be younger than 60, because presidents prefer justices who will remain on the bench for decades after their presidencies end.

Presently, there are ten known openly gay or lesbian federal district court judges—all appointed since 2011—out of nearly 900, and one federal appeals court judge, appointed in 2013. And according to a report released last month by the LGBTQ legal rights organization Lambda Legal, out of 340 state high court justices, only 10 are openly gay or lesbian; in addition, only two judges nationwide are transgender. Lambda was unable to identify any openly HIV-positive or bisexual judges.

Of these, a clear frontrunner emerged based on conversations with court experts for this article: US Court of Appeals judge Todd M. Hughes, 49. The Ohio-born Duke Law graduate was confirmed 98-0 in September 2013 by the Republican-controlled Senate as the first out appellate-level judge. But Hughes also serves in an unusual nook of the federal judiciary, ruling mainly on cases involving patents, veterans' benefits, international trade, and "other really weird stuff," Ortiz said. Supreme Court justices typically come with experience in range of constitutional appellate issues, so Ortiz said Hughes's niche may not be seen as relevant.

Experts also pointed to lesbian District judges Pamela K. Chen, 54, of New York, who is Asian, and Staci Michelle Yandle, 54, of Illinois, who is black. And from the state-level judiciary, Washington Supreme Court justice Mary Yu, 58, is a Latina Asian lesbian. As there's never been an Asian American or female African American justice, any of the three would be an efficient way of making history on multiple fronts.

Eric Lesh, Fair Courts Project director for Lambda Legal, said Lambda has pressured the Obama administration for years, with remarkable success, to appoint more LGBTQ judges on every level of the federal judiciary. That effort will continue in either the Clinton or Trump administration, he said, although their priority is to push for judges likely to expand LGBTQ civil rights and protections. Trump is vowing to choose justices in the mold of the late Justice Antonin Scalia, whose virulent dissents against LGBTQ rights is clearly not what Lambda has in mind.

While the federal bench is the usual source of nominees, the nation's first Jewish, female, and black justices took less traditional paths. In 1916, Brandeis became the first non-Christian justice having never served as a judge. O'Connor, the court's first female justice, was a longtime Arizona state senator with just two years on the state's appellate court bench before President Reagan made her a household name in 1981. And Marshall, its first African American justice, served briefly as a federal appellate judge, but his prominence came first as the lawyer who won the landmark Brown v. Board of Education case in 1954.

It is thus possible for a president to cast a wider net. After Scalia's death, in fact, Stanford professors Pamela Karlan, 57, and Jeffrey Fisher, 46, co-directors of the school's Supreme Court Litigation Clinic, were both mentioned as prospects by court watchers. And experts interviewed for this article pointed to prospects like Kenji Yoshino, 47, a law professor at New York University; Paul Wolfson, who was short-listed by Obama in 2014 for a seat on the Washington DC Court of Appeals; Kathleen Sullivan, a 61-year-old Stanford Law School dean; and Mary Bonauto, 55, the attorney who successfully argued the 2003 Massachusetts case that won same-sex marriage as well as the Supreme Court's Obergefell marriage equality case in 2015.

Elected officials are another once-common, now-rare pool for Supreme Court nominees that observers believe could resurface. On that score, the most likely prospect could be Wisconsin senator Tammy Baldwin, 54, the first out person to win a seat in Congress and then in the Senate. "If we're looking for somebody who is smart, has a law degree but also could bring a different kind of perspective, I could see Tammy," said Indiana University law professor Steve Sanders, who noted that the former chief justice Earl Warren was appointed with no judicial experience directly from his perch as California governor in 1953.

Two others make that list: Oregon governor Kate Brown, 56, who is the first openly bisexual person to be elected governor and has a law degree, and Mary Healey, 45, the first and only openly gay state attorney general.

Of course, this is only worth discussing because the Senate's attitude toward LGBTQ nominees has undergone a dramatic improvement of late. Just six years ago, the White House had to tamp down murmurs that Justice Elena Kagan, a childless, never-married older woman, might be a lesbian. But in 2014, to the surprise of many, both GOP senators from Texas, Ted Cruz and John Cornyn, supported the successful appointment of Robert Pitman, 54, as an out federal district judge in the Lone Star State.

In fact, a President Hillary Clinton might even nominate an out justice as a way of reshaping her family's legacy on LGBTQ rights. It was her husband, after all, who passed 1996's Defense of Marriage Act, which both still defend as necessary at the time to stave off an anti-marriage equality constitutional amendment. As secretary of state, Clinton took some progressive policy and advocacy positions, but she also has been criticized for waiting until 2013, one year after Obama, to endorse marriage equality. An out nominee would help repay a community that supported and funded her despite that history.

Erman offered up one more intriguing possibility: That a Supreme Court justice could come out.

"It's telling that we're talking about the first openly gay justice, because we're pretty sure the first gay justice has already come and gone and we just don't know it," he said.

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