Trump’s choice to replace Supreme Court Justice Anthony Kennedy is conservative judge Brett Kavanaugh, who does not have much of a track record on LGBTQ issues but is one of the most reliable legal right-wingers in the country. (Sorry, Peter Thiel.) At 53, he’s likely to be part of a conservative male majority for the better part of a generation or even two.
But rather than lament this nightmare conservative ascendancy and the damage it could do not just to Roe v. Wade but Obergefell v. Hodges we are going to take a different tact: dream about a better future.
At some point soon the Court will have to admit an LGBTQ justice to its ranks (over the dead bodies of Donald Trump and Mitch McConnell). The day will have to wait until a Democrat is in the White House. By then, the appointment of an openly gay or lesbian justice would be a sharp legal and personal rebuttal to the right-wing ideologues that Trump will have chosen.
So we made a dream team list of exceedingly well qualified LGBTQ candidates who could someday sit on the high court. The only benefit of having to wait is that the list of qualified nominees will only grow. But there are already a solid group of candidates for a Supreme Court opening. The hundreds of federal judges available to move up to the highest Court is one of President Obama’s greatest legacies.
Here’s a look at just a few of the jurists and legal scholars who deserve consideration.
This is a long ways away from happening of course, but, hey, a girl can dream!
1. Todd Hughes
Hughes would be at the top of anyone’s list of who would be the Court’s first gay justice. He was appointed by President Obama in 2013 to the U.S. Circuit Court of Appeals, the highest federal court after the Supreme Court. He was approved unanimously by the Senate, which would make Republican opposition to a Supreme Court nomination more difficult. A graduate of Duke School of Law, Hughes has all the credentials of a traditional Supreme Court nominee, and one drawback: his focus on the bench has been on narrow issues, like patents and veterans benefits, not the broad topics that the Court generally rules on.
2. Pamela Chen
Chen is another one of Obama’s nominees to the federal bench, serving as a judge on the U.S. District Court in New York. With a degree from Georgetown Law School, Chen has worked as an assistant U.S. Attorney and in the Civil Rights Division of the Department of Justice. Chen would not only be the first lesbian justice but the first Asian-American justice.
3. Darrin Gayles
Gayles is the first openly gay black man to serve as a federal judge. A graduate of Howard University, he holds a degree from George Washington University Law School. Gayles has been unafraid to wade into some of the hottest legal issues. Last January, he sided with 92 Somalis who had accused ICE of abusing them, saying he wanted to “prevent an unlawful exercise” of the agency’s discretion to deport people.
4. Mary Yu
Not all Supreme Court nominees come from the federal bench. Sandra Day O’Connor had only served two years on an Arizona state court when Ronald Reagan tapped her to be the first woman on the Supreme Court. Yu is a justice on the Washington State Supreme Court. The daughter of a Chinese-American father and Mexican-American mother, Yu presided over the first same-sex weddings in the state. Working against her is her age: at 61, she may be too old by the time the next president looking is for a long-term appointee.
5. Mary Bonauto
The long-time civil rights attorney has no experience on the bench. But as one of the attorneys who successfully argued for marriage equality before the Supreme Court, Bonauto would represent an important statement about the nation’s commitment to LGBTQ rights. She would be an appointment in the tradition of Thurgood Marshall, who argued the Supreme Court case that ruled segregation unconstitutional. (In fact, former Rep. Barney Frank has called her “our Thurgood Marshall.”) Her appointment would be a corrective to the religious liberty advocates looking to minimize LGBTQ protections.
Over time, the list of deserving candidates will continue to grow as judges and scholars gain more experience. (Although their trajectory is blocked by Republican Senates and White House for at least the near future.) But the fact is, we’re overdue for an appointment to the nation’s highest court.
It will never happen in a Trump administration but it’s bound to happen. It’s just a question of time, and even Republicans can’t stop that.