President Obama should appoint a lesbian to the Supreme Court.
I'm not saying this because the Supreme Court needs a lesbian for demographic balance, although certainly it wouldn't hurt. I'm saying it because the two best plausible candidates for the Supreme Court, Pam Karlan and Kathleen Sullivan, happen to be lesbian. Right now, appointing the sharpest and most progressive candidate means appointing a lesbian.
I won't argue here against those who think that Obama should not appoint either of these women because they are too progressive, because neither has been a judge, or because they would be too hard to confirm due to their politics. I'll answer those concerns in comments if need be, but that's not the point of this essay.
My argument is with those who argue that it would not be a good idea to appoint them because they are lesbian, because that's just too controversial. I've thought it through and concluded that, counterintuitively, the advantages outweigh the supposed disadvantages.
UPDATE: First, please consider reading the diary before criticizing it on the title. This is not an "affirmative action for lesbians" diary; the two people I promote are among the top possible nominees right now anyway. The first addresses the effect of confirming a lesbian Justice on the internal dynamics of the Court, and why a lesbian Justice may well lead to better decisions by pulling Justice Kennedy towards the left. If you're criticizing a diary based on other assumptions, you're missing the point. Thanks to the people who have been saying so in comments while pointing people to the diary's actual content.
Second, I don't want to risk incurring the wrath of BenGoshi by mentioning being on the RecList, but I feel the need to do so by way of apology. I usually try hard to stick around for diaries when it looks like they might go somewhere. In this case, I posted the 18th response to the diary 24 minutes after posting; I assumed that it was going nowhere. Because I was called in to work early for a client meeting, I didn't check back until now and didn't realize that I really should have tried to make time to take part in comments. So, I apologize for an inadvertent "hit and run" and will try to answer people after work. And, um, finishing taxes.
If challenging the prejudices of the citizenry and the Senate turns out to make political sense, it will have a notable recent precedent. Leading up to the 2008 Democratic nomination campaign, many people expressed concern (me admittedly among them) that nominating an African-American in a prejudiced society could be asking for a noble defeat that our nation couldn't afford. What received much less notice was the upside: if we nominated someone who could get over the hump of widespread anti-Black prejudice, the choice would pay substantial dividends: people felt good, felt a sense of national accomplishment, about the election of Obama; certainly our standing with the rest of the world has been increased by our choosing a member of a minority group to represent us.
Counterintuitively, Obama's race, while it did not make his election easier, made it much more valuable in many ways. So it is now for electing a lesbian qua lesbian, regardless of the fact that (especially factoring in their relative youth) Karlan and Sullivan would make two of the best possible appointments to the Supreme Court.
The thing to consider is the internal dynamics of the Supreme Court itself. I build on a few assumptions.
(1) The most important thing to do on the Court right now is to convince Anthony Kennedy to vote with the liberal-moderate bloc whenever possible.
(2) The greatest vulnerability among the conservative bloc is the rift between Anthony Kennedy and Antonin Scalia.
(3) The greatest example of the rift between Kennedy and Scalia involves treatment of homosexuality.
Scalia, while he has been a great boon for conservatives (and gets away with behavior on the bench that a liberal could not), has also been a boon for liberals at times because he is so alienating towards his more moderate conservative colleagues. He would routinely and viciously excoriate Sandra Day O'Connor for her siding with liberals in 5-4 cases, in ways I won't review here. He, I believe, helped push her into the waiting arms of liberals in close votes far more often than would someone with a gentler touch.
Scalia has done the same, increasingly, with the new swing vote on the Court, Kennedy. Nowhere did he do so more than with his vicious and belittling dissent in Lawrence v. Texas, the decision that overruled state anti-sodomy laws that were generally used primarily to targets homosexuals.
Read the Lawrence decision (it's available through that Wikipedia link) and you'll see one thing quite clearly: Anthony Kennedy is proud -- justly proud, given where he comes from personally and politically -- with his ability to empathize (yes, empathize) with homosexuals who aspire to equal rights. This sharpest schism between Scalia and Kennedy is one that brought out Kennedy's "better angels." Strategically, we would like Kennedy to be reminded, regularly, of the decent jurist that he can be at his best, and of the contempt in which Scalia holds him.
Well, how better to do that than by having a gay Justice on the bench? It just so happens that the two gay people best suited for the position now happen to be women. Appoint one of them and you appeal to the better angels of Justice Kennedy's nature, every single day. (This, by the way, is one of the things that happened after Justice Marshall was appointed -- the presence of a Black man on the Court simply changed the nature of intracourt dynamics. Certain things were now said because they had an ideal exponent; certain things could not be said without challenge because Marshall's life experience could easily shoot them down.)
We'd like another thing to happen besides having Kennedy's ear -- we'd like Scalia or Thomas to decide that being a Justice is not all that fun anymore and to step down. These are not suave and urbane guys like Chief Justice Roberts. It would not surprise me if, driven by prejudice, they did not like having to treat a lesbian as an equal, did not like having to sit through the discussions of Ginsburg, Sotomayor, and the new Justice talking about things outside their experience. It would disenchant either Justice in a way that appointing Merrick Garland (or even Elena Kagan) would not.
When LBJ appointed Thurgood Marshall to the Court, it made a statement to the public and to the world. But, again, it also profoundly affected Court dynamics. Appointing one of these women -- and if my analysis is right, the wry and urbane Sullivan may be more Kennedy's style than the feisty Karlan (whom I worry Scalia might enjoy arguing with too much) -- to the Court would also have a great effect on Court dynamics.
I recognize that there are other considerations. I simply want to make the point that the characteristics that makes some people think "no, Obama can't do that for political reasons" may turn out to be exactly the thing that, to the extent that political reasons do lead him to his final choice, that he should do. Deepen and widen that Kennedy-Scalia rift and you get better majority opinions. This may be the best way to do it.