Leah Ward Sears

The White House has begun floating trial balloons for candidates President Obama might appoint to the U.S. Supreme Court to replace retiring Justice John Paul Stevens. It’s a well-known ritual—played by anonymous White House sources, a willing and competitive media, and even justice-wannabes who know how to capitalize on the power of the rumor mill.

The Associated Press is, thus far, winning: claiming that it has “confirmed” the names of seven potential nominees on a list of candidates it says is 10 people long.

The seven include nominees that are generally friendly to the LGBT community, based on what little is known of them right now. They include Solicitor General Elena Kagan, Michigan Governor Jennifer Granholm, Homeland Security Secretary Janet Napolitano. The other four include three circuit court judges with brief, but friendly, records on gay civil rights, and a former Chief Justice of the Georgia Supreme Court who is at least liberal enough to be disliked by anti-abortion groups because—they say—she protects constitutional rights to privacy against efforts to legislate morality.

Not on the list—at least not confirmed by Associated Press—are two openly gay candidates mentioned last time around: Stanford professors Kathleen Sullivan and Pam Karlan. The likelihood of their being considered, given the hostile partisan climate of the Senate right now, seems nil.

The seven who are reportedly under consideration include:

• Former Georgia Supreme Court Chief Justice Leah Ward Sears was the first African American woman to serve as chief justice of any state supreme court—and she did so in Georgia. During that time, she twice sided decisions overturning the state’s laws against sodomy. “The individual’s right to freely exercise his or her liberty is not dependent upon whether the majority believes such exercise to be moral, dishonorable, or wrong,” wrote Sears in a concurring opinion in Powell v. State in 1998. She is also friends with conservative Justice Clarence Thomas, who would likely be an asset in persuading conservative senators to give her their support.
• 9th Circuit U.S. Court of Appeals Judge Sidney Thomas. Thomas, appointed by President Clinton in 1995, dissented from a 9th Circuit decision that said it was permissible for San Francisco police to do strip searches and body cavity searches of all arrested persons—even those arrested for non-violent acts of vandalism during a gay pride event. He also agreed with the full circuit’s refusal to hear a school district’s appeal of a decision that found it unconstitutional for a school to bar a gay student from wearing a gay pride t-shirt.
• Solicitor General Elena Kagan. The Solicitor General’s position is sometimes referred to as the “10th justice” because of the importance of the role before the nation’s highest court. From the moment Obama nominated Kagan to the position, speculation began that she would eventually be his nominee to the court. She was a clerk for liberal Justice Thurgood Marshall and, as dean of Harvard Law School, defended a non-discrimination policy that barred military recruiters because of their discrimination against gays. That, coupled with her status as single and having served as a research assistant for the great defender of gay civil rights, Laurence Tribe, will no doubt sound an alarm for right-wing conservatives.
• 7th Circuit U.S. Court of Appeals Judge Diane Wood clerked for liberal Justice Harry Blackmun and was appointed by President Clinton. She has a mixed record on gay-related cases—something that probably bodes well for her prospects for confirmation. In 2000, she joined a panel decision against a gay man, Robert Mueller, who violated the terms of his release from prison for having refused to file his tax returns because he could not file a joint return with his partner. But two years later, she dissented from a panel decision that found no fault in a school district’s failure to prevent harassment of a teacher for being gay. She also dissented from a 1998 panel decision that allowed students to object to their student fees going to gay groups and other organizations of which they disapproved.
• Homeland Security Secretary Janet Napolitano, appointed by President Obama, was governor of Arizona and, prior to that, its attorney general. As governor, she said she opposed an amendment to the state constitution to ban gay marriage but her reasoning was not that such a ban would be unconstitutional, rather because the state already had a statute that banned gay marriage. Like Kagan, she is unmarried and subject to frequent speculation about her sexual orientation even though, according to the Arizona Republic, she has described herself as “just a straight, single workaholic.”
• D.C. Circuit U.S. Court of Appeals Judge Merrick Garland was appointed to the appeals bench by President Clinton and clerked for one of the high court’s liberal icons, William Brennan. But he’s the most conservative of the seven nominee candidates. He joined a decision that upheld a gay Navy man’s discharge even though two discharge boards said there was insufficient evidence to merit discharge. He joined a decision that upheld a Federal Communications Commission action against the operator of a low-power radio broadcaster serving the gay community. And he joined then D.C. Circuit Judge John Roberts Jr. in a decision rejecting police liability for misconduct by officers who sprayed a chemical deterrent on members of a pro-gay protest group during President George W. Bush’s first inaugural parade.
• Michigan Governor Jennifer Granholm is labeled a “long shot” by her home state newspaper the Free Press but her name keeps coming up. She opposed an amendment to the state constitution to ban same-sex marriage and, following that, sent a letter to constituents assuring them she was not ending benefits for domestic partners. She riled right-wing conservatives recently by issuing a statement calling on state legislators to pass an anti-bullying bill, which the American Family Association sees as part of the gay agenda.

President Obama is meeting with several members of the Senate next week to hear their thoughts on filling Stevens’ seat.

Richard Socarides, who worked in the Clinton White House, said he thinks all the potential candidates mentioned thus far would be “pretty outstanding” and “pretty reliable” when it comes to gay civil rights cases. But he said the president’s chief considerations now are “who he connects with best on a visceral level” and “who is most likely to be confirmed.”