When President Obama was last faced with nominating a Supreme Court justice, part of the scuttlebutt surrounding his options included the assertion that he couldn’t pick a gay candidate. While two of the openly lesbian subjects of discussion two years ago didn’t appear to make Obama’s short list, there was much online discussion of whether the short-listed Elena Kagan, a former dean of Harvard Law School, was gay — and whether that mattered. Journalist Michael Wolff even went so far as to conjecture that Obama’s eventual nominee, Sonia Sotomayor, was gay herself.
It was generally assumed that for his first choice for the Supreme Court, Obama would choose a more moderate jurist so as to avoid conflict and the perception that he was going to rule as a strict partisan after running as a bridge-builder. But now he’s proven, though health care, that when push comes to shove he’s willing to reveal himself as a progressive. if he gets another chance to put someone on the court (and it looks like he will), he may very well feel more free to pick a more controversial nominee.
A gay justice would be controversial because there is at least one major gay-rights case — the Boies-Olson California case about marriage equality and Proposition 8 — that will most likely go up in front of the nation’s highest court in the next few years. But according to a Vanity Fair/CBS News poll out this week, 55 percent of Americans would support having an openly gay person in that role. (Fifty percent would support a gay president, 61 percent would support a gay commissioner of baseball, and 62 percent would support a
Major League NFL quarterback, for what it’s worth. Though we have no idea why they asked about that second possibility.)
Of course, the opinion of the majority of people and the opinion that gets most frequently covered by the media aren’t always the same thing. And Christian and far-right-wing so-called “family” groups are sure to go ballistic if there is a real viable gay candidate being considered, drowning out moderates with the volume of their complaints. But it will pay for Obama to remember, before the rhetoric gets misleading and overheated, that generally, most people are simply okay with this.