We now know that David Souter plans to step down from
the Supreme Court at the end of this term. Nominated by President
George H. W. Bush in July of 1990 on the expectation that he would be a
dependable conservative vote on the Court, Justice Souter has instead
marked his time on the Supreme Court as a reliable member of the
Court’s left. Not only has his judicial ideology departed from that
which was expected of him, but the Court’s center has shifted markedly
to the right, making his rather moderate views seem "left-ish" in
comparison.

Rumors of Justice Souter’s resignation set off the usual
parlor games among bloggers and law professors alike. Rather than weigh
in on who I think is likely to replace Justice Souter, a little back
story on his nomination in 1990 may put the current nominatory climate
into some perspective. In the intervening almost 20 years since David
Souter was nominated to the U.S. Supreme Court by President Bush the
First, much has changed. Let’s hope that the issue of the nominee’s
personal life is one of them.

In July of 1990, President Bush nominated David Souter to fill
William Brennan’s seat on the U.S. Supreme Court. At the time, I was
the Executive Director of the National Lawyers Guild
– the national association of progressive lawyers and legal workers. It
fell to us and the rest of the "critical left" to formulate an opinion
about the Souter nomination and, most likely, to oppose it – he was,
after all, being nominated by a Republican President.

The NLG played a key role in the meetings that were immediately  convened in Washington to discuss strategy. Of the national organizations that attended
these gatherings – the ACLU, the Alliance for Justice, People for the
American Way, the Center for Constitutional Rights, NOW, etc. – the
Guild was the only membership organization that had lawyers in New
Hampshire who knew Souter and his reputation. Everyone else was, “who?”
We worked up a briefing paper for the first meeting, and the only
“dirt” we could find on him was his aggressive prosecution when he was
the New Hampshire Attorney General of a couple of hippies who had
covered up with tape the “Live Free Or Die” slogan on the license
plates on their van because they disagreed with the state’s motto.
Otherwise, our New Hampshire members told us that he was a very quiet,
ascetic man who had never married and preferred books to people.

When we began to discuss possible strategies for derailing the
nomination – which of course we had to do since Bush had nominated him – the
Executive Director of one of the aforementioned organizations declared:
“Maybe he’s gay, we can use that on him.” The confirmation fight of
Robert Bork was still fresh in our minds – having occurred only 3 years
earlier – so why not “Bork him” with homosexuality?

Pat Maher, who was then the Executive Director of the Center for
Constitutional Rights, looked over at me and we exchanged the “are you
going to take this one, or should I?”-look. I stood up and made clear
that “queer-baiting” the nominee was not an acceptable strategy. There
was some “why not?” kind of push back we got from several people at the
meeting – “maybe we could just float the suggestion informally, and let
it circulate for others to pick up and run with?” suggested one person.
“We have so little to work with.”  After all, “outing” as a political
tactic used by gay people against closeted gay people had just started
to get public attention. Six months earlier, gay activists had “outed”
Mark Hatfield, a Republican United States Senator from Oregon, because
he supported legislation initiated by Jesse Helms. In March of 1990,
recently deceased Malcolm Forbes was outed by Michelangelo Signorile.
Why not David Souter too?

Pat and I took turns answering the homophobic suggestions that we
exploit the suggestion of Souter’s presumed gay-ness, turning back the
creative ways we could “out him” as a way to undermine his viability as
a member of the Supreme Court. We had no actual evidence that Souter
was gay, rather he was an unmarried adult man who at the time still
lived with his mother. He had not taken public positions that were
anti-gay or was otherwise duplicitous in his public and private life –
as was Hatfield and today’s Larry Craig.  Merely outing him, or
suggesting that he might be gay, was capitalizing on the homophobia
otherwise circulating in society and Washington.  Not acceptable. Pat and I won the day – we didn’t go with the “outing” strategy –
instead we opted for the “stealth nominee” idea (we coined the term).

Obama’s short list, or at least the one circulating in the parlors of law schools and Washington, contains several candidates with private lives like Souter’s: neither Elena Kagen nor
Janet Napolitano have been married.  But get this: Kathleen Sullivan,
former dean of the Stanford Law School and Pam Karlan a law professor
also at Stanford, both often mentioned for the Court, are actually out
lesbians.  You can be sure that the Republican members of Congress and
the advocacy groups lining up to oppose any Obama appointee are
strategizing how to raise the “gay” issue with Kagen, Napolitano and
Sullivan (the conservative blogosphere is already well down that road).
2009 isn’t 1990 – and the mere suggestion of homosexuality doesn’t have the same unseemly undermining effect that it did back then. But it ain’t nothing – like not paying your taxes seems to be now. (Remember Zoe Baird?).

So when queer-baiting these nominees is inevitably suggested let’s
hope there’s someone in the room who stands up and urges a different
tactic. Just as some Republicans have come to appreciate how their
opposition to same sex marriage may be hurting the party, or so says
the New York Times,
queer-baiting Supreme Court nominees may be counterproductive for them
as well – more so today than it was 20 years ago when David Souter’s
name, and life, came before the Senate Judiciary Committee.

 

This article first appeared on the Columbia Gender & Sexuality Law Blog.