The XX Factor: What women really think.

Are Conservatives Anti-Gay or What?

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.

Thinner Skin, Or Just Not Crazy?

One further—and purely speculative—thought about the conversation between Emily, Bonnie, and E.J. about the need for a woman justice to replace David Souter. And this one is based on conversations I have had over the years. I have heard at least a few powerful women lawyers who could be in the running for this type of gig say without reservation that they would never, under any circumstances, put themselves through the nasty, personal, and hate-filled confirmation process that has become almost unavoidable. (I keep thinking of Justice Alito’s wife bolting from her husband’s hearing in tears a few years back). One woman judge bluntly told me she could never do that to her family, no matter what the prize. Others have said they just wouldn’t want to go through something that was almost designed to make them look ridiculous or awful for all time. Just reflecting on the abuse that’s recently been heaped on Dawn Johnsen—Obama’s pick to head the Office of Legal Counsel—I can see why. I’m not quite prepared to assert here that women have thinner skin than men when it comes to being called the Spawn of the Devil on national television. I’m sure many of the women on the so-called short list have endured far worse. But it’s a good time to recall the rumors that there were several highly qualified women ahead of Harriet Miers on President Bush’s short list, who all evidently took themselves out of the running for some of these reasons.

Specter v. Souter

The spectacle of Senator Arlen Specter surely had nothing to do with Justice David Souter's timing—if indeed reports of his retirement plans are true. But it's a pointed, and also rather poignant, contrast. The almost-80-year-old guy who's got every reason to hang it up just can't let go—and hogs the spotlight by grabbing the chance to shift the balance in the Senate. I'm with you, June and Emily, in thinking the time had perhaps come for the gentleman from Pennsylvania to go potter in the garden. Meanwhile, the justice who hasn't yet hit 70 (at 69, Souter's the average age of those now on the bench) reportedly can't wait to head for the hills—and he is giving up a historic role. Maybe the two of them should have had lunch and swapped career advice, though as Souter chomped his apple I somehow doubt he would have changed his independent mind (assuming it is now made up). That's one of the many reasons he will be missed.

David Souter—Some Fire Under the Ice

Emily, I suspect that the rumors are true and that most of the serious contenders for David Souter’s seat are women. I was less sure that was necessary last week before the strip search case. Now I think its pretty much imperative.

There are already a lot of appreciations of Justice Souter up this morning, many focusing on the eccentricities of the man himself (he eats an entire apple, seeds and all, and cup of yogurt for lunch every day. He had never heard of Diet Coke before coming to Washington), and many more focused on his unexpected shift from what John Sununu assured President Bush would be a "home run for conservatism” to a liberal stalwart. When Souter was sitting through his confirmation hearings, NOW was distributing leaflets that read, “Stop Souter or women will die.” But as Jeff Toobin reports in his book The Nine, that same Justice Souter was the fulcrum that eventually held the court together in the landmark Casey abortion case in 1992. And also according to Toobin, for a while after Bush v Gore, Souter would just think about the decision and weep.

But Souter has been a lot more than just a massive disappointment to the right. Watching him at oral argument—as recently as Wednesday in the Voting Rights Act case—you just didn’t see the bookish, reclusive man from another century. You saw an incredibly passionate and eloquent spokesman for equality and racial justice, often willing to dominate an argument and wear his heart on his sleeve in ways his colleagues would not. The public has often underestimated Souter because he shuns the spotlight and writes, for the most part, in a pretty bookish, temperate way. We also tend to glide right past him because given any chance to do so, he will run himself down as well. But if you’ve been watching him for the past few years, you know that more often than not the passionate, fiery and even outraged voice from the liberal half of the bench has been Souter’s. If it’s indeed true that he is leaving, the left of the court won’t just be losing a bright light, but some much needed heat as well.