As the U.S. Senate begins hearings on President Obama's nomination of Elena Kagan to the Supreme Court, it is worth noting that if the nomination is approved, it will be the first time in history that three female Justices will sit together on the Court. Kagan would also be the third Jewish member of a Court that already includes an African-American and a Latina. As diverse as this group would be, there would still be no openly gay or lesbian Justice, leaving gay people -- along with Asian Americans -- as one of the last minority groups not represented in the Court's membership.
But it is not just the high court that lacks openly gay members; it is the entire federal judiciary. Although President Obama recently nominated Edward DuMont, a gay man, to serve on the U.S. Court of Appeals for the Federal District, no openly gay man or woman has ever served on one of the intermediate federal appellate courts. This fact is significant because almost all of the nominees to the Supreme Court over the last forty years -- Elena Kagan is an exception -- have been promoted from those courts.
The absence of gay jurists at the trial level is also striking. There are currently over six hundred federal district court judges. Yet, under my count, there are only two open lesbians (both appointed by President Clinton), and no openly gay men, among them.
It is curious that at a time when there are many openly gay individuals serving in America's state legislatures, corporate boardrooms, and leading universities--and perhaps soon in the military as well -- the federal judiciary remains one of the last important institutions where gay people seem not be welcomed. We would never as a country accept a federal bench that only had two female or two African American or two Latino members. Such low numbers would be clear evidence of discrimination in the judicial appointments process. Many citizens would also properly question the legitimacy of rulings issued by such a homogeneous group of judges.
And yet, the almost complete lack of gay federal judges receives little attention, even among gay rights advocates.
This state of affairs is troubling given that the federal courts, as the primary enforcers of federal constitutional law, have traditionally played a vital role in protecting the rights of minorities in this country. It was federal judges who forced the nation to reckon with its long history of race and gender discrimination. In more recent years, it is federal judges who have grappled with the constitutionality of the bans on military service and adoption by gay people. And it is the federal judiciary that will soon determine the constitutionality of the Defense of Marriage Act and of California's constitutional amendment banning same-sex marriage.
There may be some who object to gay judges, believing that they could not be impartial in overseeing lawsuits alleging sexual orientation discrimination. But to believe that would be to also hold that a female judge could not apply the law correctly in a sex discrimination case or that a white judge could not be fair in a legal dispute alleging "reverse discrimination" against white employees. To think that gay people cannot be fair judges is to fall under the same misconceptions that make it necessary to bring discrimination claims to begin with.
We are, as a society, increasingly coming to the view that it is impermissible to deny individuals jobs because of their sexual orientation. A recent Gallup poll found that 85% of Americans believe that gay people should have equal employment opportunities. In addition, the vast majority of Fortune 500 companies have policies in place that protect lesbians and gay men from discrimination. When it comes to sexual orientation, however, the makeup of the federal judiciary remains largely impervious to change.
As the Supreme Court's composition increasingly shows, it is possible to make meaningful strides towards having a federal bench that more closely reflects the nation's diversity. But as the hearings on President Obama's latest Supreme Court nominee begin, it is important that we remind our leaders that having a diverse bench does not end with considerations of race and gender.