The Politics of a Lesbian Nominee

A number of the people under consideration as Supreme Court nominees are either “out” lesbians or else are widely rumored to be lesbians. Richard Just mulls the politics of this:

More significantly, though, nominating a lesbian to the court would put conservatives in a politically awkward position. As the gay rights battle has come to center more and more on the specific question of marriage, conservatives have frequently insisted that they are not anti-gay, just opposed to gays getting married. Conservatives are attached to this distinction because they know that, without it, they end up looking like bigots. But if they decide to make an issue of a Supreme Court nominee’s sexual orientation, they would effectively be conceding that this distinction was a lie. (After all, could there be any more baldly anti-gay political maneuver than bashing a Supreme Court nominee because of her sexual orientation?) Given that most Americans are no longer comfortable with transparent homophobia (while conservatives still have the majority on same-sex marriage, liberals enjoy majorities on various other gay-rights questions, such as workplace discrimination), it would be a risky move for conservatives to toss aside their cherished distinction between anti-gay sentiment and anti-gay-marriage sentiment. So maybe they would think twice about raising sexual orientation during a confirmation battle. And if they decided to do it anyway, it could become one of those defining moments where the American political center gets a glimpse at the fundamental ugliness undergirding a particular crusade–and turns decisively in the other direction.

Maybe. On the other hand, a lesbian nominee could just serve as the backdrop for a lot of preening about how we need justices who will “follow the law” rather than letting their “personal views” color decisions.

At the end of the day, I would take a deflationary view of the whole matter. As long as Obama comes out with a well-vetted choice who Democratic Senators are comfortable voting for, the nominee will be confirmed and the public will be happy enough with the choice. But I highly doubt that Republican Senators will pay some kind of high political price for voting “no” en masse. And whether or not they do vote “no” will have much less to do with who Obama picks than with the Senate GOP caucus’ own desires. Thus far, they’ve mostly taken the view that their interests lie in uniformly voting against everything Obama does and hoping that eventually there’s some huge anti-Obama backlash in public opinion. This is a strategic judgment about politics, and it’s not really about the particulars of Obama’s actions.