Would a Harris-Walz win get us closer to an out LGBTQ+ Supreme Court judge?

Four years ago, when then-Mayor Pete Buttigieg became the first openly LGBTQ+ presidential candidate from a major political party to win delegates, many imagined the real possibility of a queer top executive for the first time. But perhaps the next major milestone in LGBTQ+ representation will occur in a different branch of government — the judiciary. Is it likely that a President Kamala Harris would nominate an LGBTQ+ person to fill a vacancy on the Supreme Court of the United States in the next four years? Should this be a priority if she wins the election?

Marc Stein, professor of history at San Francisco State University, isn’t holding his breath. But the author of Queer Public History: Essays on Scholarly Activism, Sexual Injustice: Supreme Court Decisions from Griswold to Roe and other works did call it possible. And he was willing to speculate, name names, and predict that Buttigieg could soon be appointed to a higher status Cabinet position, like Homeland Security or U.S. Ambassador to the United Nations.

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“I would first say that there probably have been LGBTQ Supreme Court justices previously,” Stein told LGBTQ Nation, “and there are definitely claims about a justice who served in the 1940s, Frank Murphy, that he was likely gay. Now, not openly gay. So obviously, that’s a really important difference.”

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Anya Lynn-Alesker (they/she), executive director of the National LGBTQ+ Bar Association and Foundation, says it’s important to have LGBTQ+ representation in the judiciary.

It’s important to note that no LGBTQ+ person has ever served on many federal courts, including nine out of 13 federal appeals courts and over 80% of federal district courts, with most states having never had an out LGBTQ+ federal judge. 

“The real importance is that Americans, including LGBTQ+ Americans, deserve to have federal courts that reflect the communities that they serve.  And it is the bar’s belief that having diverse perspectives broadly makes the bench stronger and leads to better judgments,” Lynn-Alesker told LGBTQ Nation.

“Today, despite over 7.6 or so percent of adult Americans identifying as LGBTQ+, only 3 percent of active federal circuit and district court judges are openly LGBTQ+,” Lynn-Alesker added. 

Complicating the question is whether Harris would want to appoint a justice from another underrepresented group, such as Native American or Asian American Pacific Islander populations. But on the basic issue of whether Harris would have an interest and a commitment in nominating an LGBTQ+ judge or other legal professional, “I would think just having a sense of her politics that she would be open to doing that,” Stein said.

“She would consider doing that. She would likely be looking for various LGBTQ appointments that she could make. But whether that’s going to be a Supreme Court justice, it really depends on all these other factors.”

In the past few decades, key Supreme Court decisions have rapidly extended LGBTQ+ rights by decriminalizing same-sex conduct (Lawrence v. Texas), recognizing marriage equality at the federal level (United States v. Windsor), legalizing it nationwide (Obergefell v. Hodges), and protecting LGBTQ+ employees from workplace discrimination (Bostock v. Clayton County). This fall, the Supreme Court will decide on the case United States v. Skrmetti, which will have far-reaching implications for transgender rights.

Yet aside from the highest court, greater representation of the LGBTQ+ community is needed in lower courts, too. For practical purposes, confirming queer judges at the federal level is one way to counteract the effects of the nearly 40 percent of Trump’s confirmed federal appellate judges who have a demonstrated record of anti-LGBTQ+ bias.

The impact of lifetime judiciary appointments

Lambda Legal issued an updated report that details the deeds of 19 judges who were confirmed for lifetime appointments during Trump’s tenure. Of 34 judicial nominees that Lambda Legal opposed, 30 were confirmed by the Senate. Among the lowlights:

In 2022, Judge Lawrence VanDyke of the Ninth Circuit Court of Appeals ruled that beauty pageants may exclude transgender women based on a pageant’s free speech rights. In the Northern District of Texas, Judge Matthew Kacsmaryk is an ultra-conservative who ruled in 2022 that the sex discrimination ban in the Affordable Care Act does not prohibit discrimination based on sexuality or gender identity. In 2020, Judge Kyle Duncan of the Fifth Circuit Court of Appeals (also known as the “Hobby Lobby Lawyer”) refused to call a transgender petitioner by her correct name and pronouns despite her written appeals. These lifetime appointments mean decades of repercussions. 

And while President Joe Biden recently made history with a record 12 openly LGBTQ+ judges confirmed to the federal bench, the queer community is still sadly lagging in representation at that level. As of October 1, there were 66 judicial vacancies, notes Lambda Legal.

At the same time, there’s no telling how any justice will rule, regardless of membership in an underrepresented group. Look no further than Justice Clarence Thomas.

But one impediment to nominating an LGBTQ+ Supreme Court justice is the lack of LGBTQ+ judges on lower courts. 

Today, eight of nine Supreme Court justices were selected from federal Circuit Courts of Appeals. While justices have also come from other courts and other professions at the time of nomination, the fact remains that currently, out of 870 authorized total Article III judgeships, only 24 — or less than 3% — are out LGBTQ+ lifetime judges on the federal courts.

“So, if a president is looking around at the Court of Appeals as the most likely place, then it becomes important that there are just five [LGBTQ+ judges] to choose from,” Stein said. “And of those five, one was appointed by Obama, one by Trump, and then three by Biden.” 

It wasn’t until 1994 that an openly LGBTQ+ judge was confirmed as a lifetime federal judge at any level in the U.S. Judge Deborah Batts remained the only out queer judge for 17 years until President Barack Obama nominated Judge J. Paul Oetken, a former Clinton administration lawyer. Certainly, history will remember Judge Vaughn Walker, who came out publicly after he served and ultimately ended up ruling that California’s Proposition 8 (which banned marriage equality in the state) was unconstitutional.

Not only are the federal courts lacking queer judges generally, but it’s also worth noting that an openly transgender or nonbinary person has never been nominated or confirmed to serve as a lifetime federal judge. Also conspicuously absent are any openly bisexual, intersex, or HIV-positive federal court judges.

How the Senate could impact appointing the next Supreme Court justice

The Senate could also be another barrier to Harris nominating an LGBTQ+ Supreme Court justice. 

To even contemplate an LGBTQ+ justice, Stein pointed out that the makeup of the Senate will be critical “because if, say, [Vice President] Kamala [Harris] wins, but Republicans control the Senate, that really limits who she can choose and makes it much more likely that she will appoint more middle-of-the-road, less groundbreaking justices,” Stein said. Currently, the battle for control of the Senate remains highly competitive as Election Day approaches. 

The LGBTQ+ Bar believes it’s critical that judges of all backgrounds, including LGBTQ+ judges, also serve on state and local benches to bolster public confidence in the judiciary.

“Through tailored programming and official letters of support for LGBTQ+ prospective judges seeking appointment, the LGBTQ+ Bar hopes to inspire more LGBTQ+ legal professionals to join the bench, fostering a judiciary that best reflects the communities it serves at all levels, including state and local courts,” said Mari Nemec, Policy Counsel for the National LGBTQ+ Bar Association and Foundation. 

“Federal courts have wide-reaching effects on Americans, but state court judges often make determinations that impact people’s daily lives.” 

Moreover, judges with diverse backgrounds — including LGBTQ+ judges — bring their unique perspectives and empathy with them to the bench.

Judge Amanda Shelton, elected in 2022, is a judge in the family division of Oakland County Circuit Court in Oakland County, Michigan, where state judges and justices are selected in nonpartisan elections, unlike some states that have bipartisan elections, appointments, or a combination.

Reflecting on the experience, Shelton said having the chance to run for an open seat was an advantage because she didn’t think she’d be a judge today if she needed to be appointed. As a matter of fact, Shelton applied and was passed over for several appointments before an opportunity to launch a campaign arose.

“When these opportunities would come up, I would throw my hat in the ring for the appointment,” Shelton told LGBTQ Nation. “But you know, as things shook out, that wasn’t my path. So, I’m very grateful that that’s not the only path available because I was able to create and run a campaign. You know, I’ve always said people might be able to outraise me on money, but one thing you cannot do is outwork me.” 

With nearly 20 years of practicing law, Shelton had both professional and personal reasons for seeking a judgeship. 

“Part of it really was about representation,” Shelton said. “I looked around and said, ‘Is the bench really reflective of the communities that we live in?’ No. ‘Is it a job I think I could do and do well?’ Yes, and I like a challenge.”

Yet Shelton’s experience as a legal professional is also shaped by her lived experience. Because of the legal gymnastics and circuitous route required for Shelton and her wife to marry and become equal parents in the eyes of the law, Shelton has a unique viewpoint, and with that comes a great deal of empathy. 

“I can meet almost anybody where they are that walks through the door,” Shelton said.

“It is intimidating to come to court even if it’s on Zoom,” Shelton said, and that her job is to lower the temperature to better help people fix the problems that brought them to court in the first place. “I think if you have that approach as someone who is supposed to resolve problems in an empathetic way, I think that makes you a good judge. And I think that the people we serve can leave there and not feel victimized and worse than when they came in.”

Both Shelton and Stein acknowledge that while bringing greater diversity to the bench can only benefit society, accusations of judicial bias will occur. That was the fate of Judge Walker, who came out publicly after he struck down California’s Prop 8, which banned marriage equality. 

“Unfortunately, one negative aspect of this is that judges and justices are vulnerable to accusations of bias or prejudice if they represent communities whose rights or whose issues are being adjudicated,” Stein said. “Now, that’s completely unfair because we rarely hear, say, white Christian male straight judges or justices accused of bias or prejudice when their interests or agendas might be implicated.”

Shelton said that when an LGBTQ+ judge has an LGBTQ+ issue in front of them, it’s easy for people to play identity politics and make accusations. 

“But at the end of the day, the law is the law whether we like it or not,” Shelton said. “It is not our role as judges to make the law. Our job is to apply it. Apply the law to the facts. Now, of course, there’s always room for interpretation. And that’s why you want somebody with the judicial temperament that you think is appropriate for the job.” 

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