The secret life of a Supreme Court short-lister.

The law, lawyers, and the court.
May 5 2009 7:40 PM

An Unnatural Woman

The secret life of a Supreme Court short-lister.

Over time, America grew used to thinking of Justice David Souter as an only child turned unmarried man who liked history books and hiking alone in the mountains. People stopped speculating about his singleton status, and he was left alone as America's last respectable bachelor. Now the talk of his successor has opened a whole new round of status speculation. The list of potential replacements is overpopulated by women who are single, childless, or divorced. So America asks—or worries without overtly asking—what is this suspicious creature called the bachelorette, and what is she really up to?

The speculation is partly fueled by the president. Obama has said he wanted a justice with "heart and empathy" who will think about "how our laws affect the daily realities of people's lives." This meant he would look beyond the candidates' résumés and into the detailed personal backgrounds of their lives and choices. But it also meant the rest of us would be invited to do that, too.

This morning,   Josh Gerstein of Politico reported that two of the top candidates for the SCOTUS seat, Stanford Law School's Pamela Karlan and Kathleen Sullivan, are gay. (Disclosure: Sullivan was a teacher of Dahlia's at Stanford, and Karlan is an acquaintance.) Karlan confirmed this report in an e-mail to Gerstein, writing, "It's no secret at all that I'm counted among the LGBT crowd." (Actually, if it wasn't a secret, it was at least a fact the mainstream media had thus far declined to report.) Sullivan declined to respond to an e-mail from Gerstein seeking comment for the Politico article. *

You'd think this would have cleared the air for the first free and unfettered discussion of an openly gay justice. But it merely opened the door for more doubletalk. On hearing the news about Karlan, Tony Perkins of the Family Research Council said he doubts President Obama will nominate a gay person to the Supreme Court, because of the possibility of a political battle: "That would enter a whole new element of the debate that I don't think he's ready for," Perkins said. He then added that his group would not discuss sexual preference, only judicial views.

Really? Wasn't Karlan's sexual preference precisely what he'd just discussed? Karlan's judicial views, after all, haven't changed since yesterday.

Rumors abound that other women on the list are lesbians, though those rumors are rarely backed by any actual reporting or proof. None of this is surprising. Think of all the single, childless women in positions of prominence who have been "rumored to be gay." Janet Reno, Harriet Miers, and Condoleezza Rice, for starters. The very much married Hillary Clinton is practically the only one who can proudly, casually say that she marches in Gay Pride parades, although rumors that she was a lesbian have dogged her, too, for decades.

Sometimes the code for gay gets sloppy and transparent. The Christian Coalition described Elena Kagan, former dean of Harvard Law School and U.S. solicitor general, as "extremely dangerous to America." Although she has taken pains to welcome conservatives onto campus, Kagan is targeted by the right for being "gay friendly" because she took sides in a Supreme Court case in which several law schools objected to the military's policy on gay servicemen and servicewomen.

Janet Napolitano, secretary of the Department of Homeland Security and another short-lister, has many times answered questions from Rush Limbaugh and reporters about whether she is gay. Again, nobody has offered any proof, except that she is unmarried. Which seems to make everyone think: lonely, misfit, or lesbian. Ed Rendell, head of the National Governor's Association, once said about Napolitano, "Janet's perfect for that job. Because for that job, you have to have no life. Janet has no family. Perfect. She can devote, literally, 19 to 20 hours a day to it." So to lonely and lesbian add "no life."

Sonia Sotomayor, the Bronx judge at the top of most shortlists, was briefly married in college and never had children. In his woefully under-reported "The Case Against Sotomayor," the New Republic's Jeffrey Rosen quotes an anonymous source alleging that she is a "bully" and "not all that smart." Also included in this damning portrait: "Her former clerks report that because Sotomayor is divorced and has no children, her clerks become like her extended family—working late with her, visiting her apartment once a month for card games (where she remembers their favorite drinks), and taking a field trip together to the premier [sic] of a Harry Potter movie."

Do you think Justice Scalia, with his devoted wife and abundant extended family, takes his clerks to see Harry Potter? Or even La Traviata? A woman who surrounds herself with young, paid employees late into the night has a faint air of scandal and desperation about her or, at the very least, of being something short of a fully realized woman. Both Rice and Miers were perennially sent up for being, improbably, too in love with George Bush ever to commit to anyone else.

That we can't speak openly about whether some of the women who have earned consideration for the Supreme Court are gay or not, and whether it even matters, is, of course, maddening. We'd hoped that New Jersey Gov. James McGreevey, with his pathetic "coming out" press conference five years ago, would be the last remaining public official in the closet. But, alas, no. Maybe Tony Perkins is right, and Obama is "not ready" to nominate a gay person. To which we ask, what will it take? The first gay president?

Another question raised by the predominance of unmarried women on the short list: What kind of woman does it take to get there? Several years ago, some conservative women economists set out to prove that the wage gap between men and women was a myth. Anita Hattiangadi, then of the Employment Policy Foundation, concluded that if you compare men and women of "comparable worth," the wage gap virtually disappears. So what does "comparable worth" mean? It means the same education, experience, and life circumstances. Thus, Hattiangadi found that among full-time workers age 21 to 35 who live alone, the pay gap between men and women disappears. The only significant pay gap, she found, was between married men and married women.

Hattiangadi intended these findings to finally bust the "myth" of the pay gap, but, of course, they just clarified the real problem: Men and women are not very often in comparable circumstances. When they get married and have children, women's pay shrinks. That means the only women who can keep up with men are the ones who work very hard, and they are often divorced or unmarried and childless. Thus, as we ponder a list of potential Supreme Court nominees, it's hardly a surprise that the current short list is dominated by such women. And so the list is a Catch-22: The choices a woman may make to achieve stunning legal success are the same ones that may also someday preclude her from a Supreme Court confirmation.

Correction, May 6, 2009: This article originally stated that the Politco article was written by Ben Smith. It was written by Josh Gerstein. (Return to the corrected paragraph.)

This piece also appears in Double X.

Hanna Rosin is the founder of DoubleX and a writer for the Atlantic. She is also the author of The End of Men. Follow her on Twitter.

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

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