Richard Just has a knockout post over at the New Republic adding another wrinkle to the discussions that have surrounded the naming of a Supreme Court justice to replace the retiring David Souter. If the president nominated an openly gay jurist, it’s easy to assume a confirmation firestorm of Roe v. Wade proportions, led by Bible-clutching protesters and the intolerant Senator Jeff Sessions on the Senate judiciary committee. But Just wonders whether it’s not only not damaging, but in fact beneficial to have an openly gay court nominee. It would, he reasons, naturally separate the wheat from the, um, haters:
[N]ominating 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. …
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.
Ooh, snap. It’s not too often that bigots get a real, live hoisting on their own petard-but this court opening could be just such an opportunity. I really believe that a public political fight around whether conservatives are anti-gay or anti-gay marriage is one that the religious right would lose, definitively-and might do more to advance the cause of gay rights than the rolling boil of states that are legalizing such marriages. Maybe I’ve been watching too much of the NBA finals, but I would call this the political equivalent of a flying dunk in Tony Perkins’ face. Who doesn’t want to see that?
Of course, this all depends on Barack Obama, who has been fairly cowardly about gay rights, both on the trail and in office. (And, judging from those “leaders” like DC Councilman Marion Barry, who now claims spokesmanship for blacks on gay issues , the leadership vacuum is hurting the cause of justice.) Sure, there is a risk of flameout with any nomination, but if Obama really wanted to leapfrog past the current unsatisfying, incremental approach to gay rights, this is a great idea.