Then and Now – Replacing Justice Souter

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souter1We learned late last week that David Souter plans to step down from the Supreme Court at the end of this term.   Nominated by President George H. W. Bush in July of 1990 on the expectation that he would be a dependable conservative vote on the Court, Justice Souter has instead marked his time on the Supreme Court as a reliable member of the Court’s left.   Not only has his judicial ideology departed from that which was expected of him, but the Court’s center has shifted markedly to the right, making his rather moderate views seem “left-ish” in comparison.   Rumors of Justice Souter’s resignation set off the usual parlor games among bloggers and law professors alike.   Rather than weigh in on who I think is likely to replace Justice Souter, a little back story on his nomination in 1990 may put the current nominatory climate into some perspective.   In the intervening almost 20 years since David Souter was nominated to the U.S. Supreme Court by President Bush the First, much has changed.   Let’s hope that the issue of the nominee’s personal life is one of them.

In July of 1990, President Bush nominated David Souter to fill William Brennan’s seat on the U.S. Supreme Court.   At the time, I was the Executive Director of the National Lawyers Guild – the national association of progressive lawyers and legal workers.     It fell to us and the rest of the “critical left” to formulate an opinion about the Souter nomination and, most likely, to oppose it – he was, after all, being nominated by a republican President.

The NLG played a key role in the meetings that were immediately convened in Washington souterto discuss strategy.   Of the national organizations that attended these gatherings – the ACLU, the Alliance for Justice, People for the American Way, the Center for Constitutional Rights, NOW, etc. – the Guild was the only membership organization that had lawyers in New Hampshire who knew Souter and his reputation.   Everyone else was, “who?”     We worked up a briefing paper for the first meeting, and the only “dirt” we could find on him was his aggressive prosecution when he was the New Hampshire Attorney General of a couple of hippies who had covered up with tape the “Live Free Or Die” slogan on the license plates on their van because they disagreed with the state’s motto.   Otherwise, our New Hampshire members told us that he was a very quiet, ascetic man who had never married and preferred books to people.

When we began to discuss possible strategies for derailing the nomination – of course we had to since Bush had nominated him – the Executive Director of one of the aforementioned organizations declared: “Maybe he’s gay, we can use that on him.” The confirmation fight of Robert Bork was still fresh in our minds – having occurred only 3 years earlier – so why not “Bork him” with homosexuality?

Pat Maher, who was then the Executive Director of the Center for Constitutional Rights, looked over at me and we exchanged the “are you going to take this one, or should I?”-look.   I stood up and made clear that “queer-baiting” the nominee was not an acceptable strategy.   There was some “why not?” kind of push back we got from several people at the meeting – “maybe we could just float the suggestion informally, and let it circulate for others to pick up and run with?” suggested one person.   “We have so little to work with.”   After all, “outing” as a political tactic used by gay people against closeted gay people had just started to get public attention.   Six months earlier, gay activists had “outed” Mark Hatfield, a Republican United States Senator from Oregon, because he supported legislation initiated by Jesse Helms.   In March of 1990, recently deceased Malcolm Forbes was outed by Michelangelo Signorile.   Why not David Souter too?

Pat and I took turns answering the homophobic suggestions that we exploit the suggestion of Souter’s presumed gay-ness, turning back the creative ways we could “out him” as a way to undermine his viability as a member of the Supreme Court.   We had no actual evidence that Souter was gay, rather he was an unmarried adult man who at the time still lived with his mother.   He had not taken public positions that were anti-gay or was otherwise duplicitous in his public and private life – as was Hatfield and today’s Larry Craig.     Merely outing him, or suggesting that he might be gay, was capitalizing on the homophobia otherwise circulating in society and Washington.   Not acceptable.

Pat and I won the day – we didn’t go with the “outing” strategy – instead we opted for the “stealth nominee” idea (we coined the term).

Obama’s short list, or at least the one circulating in the parlors of law schools and Washington, contains several kagencandidates with private lives like Souter’s: neither Elena Kagen nor Janet Napolitano have been married.     But get this: Kathleen Sullivan, former dean of the Stanford Law School napolitanoand a name often mentioned for the Court, is actually an out lesbian.     You can be sure that the republican members of Congress and the advocacy groups lining up to oppose any Obama appointee are strategizing how to raise the “gay” issue with Kagen, Napolitano and Sullivan (the conservative blogospheresullivan is already well down that road).   2009 isn’t 1990 – and the mere suggestion of homosexuality doesn’t have the same unseemly undermining effect that it did back then.   But it ain’t nothing – like not paying your taxes seems to be now.   (Remember Zoe Baird?).

So when queer-baiting these nominees is inevitably suggested let’s hope … click here for rest of the post

– Katherine Franke, cross posted from the Gender and Sexuality Law Blog

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