Is openly gay Stanford Law School professor Kathleen Sullivan on Barack Obama‘s short list of possible replacements for Supreme Court Justice David Souter? Legal scholars and newspapers are aflutter with the top names of candidates, and the regarded constitutional scholar — the founder and director of the Stanford Constitutional Law Center — is among them. The over-unders on any name are too great to get overly excited just yet, and Obama isn’t known for taking cues from the press in making decisions. But with Sullivan’s name on the list, the vetting process is already underway in newsrooms across America.
Pragmatist
Dear Dean Sullivan is a wonderful scholar, but she did flunk the bar exam the first time around. Meaningful? Not really, not in my opinion. But it’s got such a stigma, I can’t help but think it’ll play a role in the super-politicized confirmation process.
JPinWeHo
She looks oddly like an older version of Scully from the X-files….
QueertyisCensoring Me
@Pragmatist: The CA bar exam is notoriously difficult. A lot of people fail it the first time around. She didn’t really prepare for it.
I would absolutely love it if she was on the court, although I prefer we have someone younger than fifty. She’s great, though….brilliant.
The Gay Numbers
I don’ t know of anyone in the practice of law who considers not passing the bar the first time to be a stigma. In fact, until now, this is the first I have ever seen that written anywhere.
tavdy79
She’s 53, six years younger than Alito, the youngest of the current SCOTUS justices.
Nick
This is actually a pretty big deal. For one, it’s a lifetime position- you’re there til you die or retire. Throughout history, presidents have used Supreme Court judges to make social statements. Thurgood Marshall’s appointment in 1967 could be interpreted as a win for the civil rights movement as the first African American. Antonin Scalia’s appointment was a big victory for Italian Americans, as he is the son of a Sicilian immigrant, In the same sense- the potential appointment of an openly gay woman would be a huge social statement- and more importantly, a hand extended to the gay community.
DeanP
If we are denying people decent jobs because they flunk the bar exam the first time around we are really stupid. The bar measures NOTHING that has anything to do with the actual practice of law, is ridiculous because you are never confronted with “Quick write me a research memo on X Y and Z but you are not allowed to use books or online sources,” and though I passed the first time around if I re-took it today I would fail.
dclaw
To clarify: she didn’t fail the bar the FIRST time around–she was already barred in NY and MA when she failed the CA bar in 2006. But I agree, just like JFK Jr., failing the bar is a stigma that will hurt her chances, fair or not.
Michael W.
Everybody’s got their favorite draft picks. One way or another some large Democratic constituency will feel like Obama gave them the shaft, unless of course he can find a half black, half Hispanic lesbian liberal.
Lee
Jessica H. Christ! Haven’t we learned by now?
Remember the gay names that got floated as possible Obama Cabinet appointments? Where are they now?
Remember when the story circulated that Obama was going to appoint a gay man as Secretary of the Navy? Where is he?
I’m beginning to believe they’re started by Obamabots just to distract from what’s REALLY happening and NOT happening. Just as the grumbling about Obama’s silence on his gay promises was beginning to reach a roar … this fantasy dribbles out.
Repeat after me: THIS…. IS…. NONSENSE!… The former self-described “fierce advocate” for gay rights who has transformed into a timid deaf mute would not nominate someone gay for the US Supreme Court if Clarence Darrow returned from the dead wearing a rainbow flag jacket with Oscar Wilde giving him a lap dance.
Good lord
Its a lifetime appointment, meaning she’d be out only in the event of lesbian bed death. I prefer Alec Mapa any day. He can wear those hotpants he wore at the GayVN’s under his robes, and make coke can & pubic hair jokes seem fresh again.
NewYorkness
What about Elena Kagan?? Isn’t she on the top of his list? I believe she may be an out lesbian but I could be wrong.
Pragmatist
@The Gay Numbers: Yes, unfortunately, it can be quite a severe stigma. I’ve personally overheard lawyers discussing the bar failures of colleagues who’ve had successful practices of two-plus decades. You’d think people would forget, but they don’t.
I’m in California (where the failure rate is greater than 50%), so I know of quite a few people who didn’t pass. At the firm where I started, we had one person in the class who didn’t pass — he was asked to resign.
Personally, I think the exam is an arbitrary gatekeeper. What is the value in having memorized a few thousand common law and statutory rules, only to dump them all in August? Memorization has never been an important legal skill…
The Gay Numbers
No one cares about bar failure rates except lower tier lawyers. Sorry, that’s just a reality. Someone with her credentials is not going to be looked down upon for that.
Pragmatist
@The Gay Numbers: I think you might be confusing two different ideas.
Bar passage rates are an institutional concept. It’s true that the best law schools (the top 10 or so) generally aren’t judged by their passage rates. Yale regularly outperforms Stanford in Cali, but the two are considered approximately equal. (I do think Yale’s better, but not for that reason.) Harvard and Boston U. tend to have similar passage rates, even though those schools aren’t considered peers.
It’s very different on an individual level. There, failing the bar can be a rather public (and durable) embarrassment. I don’t know where you got the idea that this only affects “lower tier lawyers” (gag). Actually, you’ve got it reversed — prestigious candidates are judged more harshly because their failure deviates farther from expectations. It becomes open speculation whether they’re irresponsible or whether they just aren’t made of the same material as their peers. (That kind of gossip isn’t particularly seemly, but then little about the legal industry is.)
Anyway, failing the bar isn’t the end of the world. But it’s no small blunder, either, especially for someone with a high profile like Sullivan’s. If she is nominated, we’ll be hearing more about this. It will be irresistible for her opponents to bring up. And, from a lay perspective, it just sounds bad: “Hey, didja hear the one about the Supreme Court justice who flunked the bar? No, really!”
Landon Bryce
@Lee:
I have a different hit here. I do think you are right– I will be shocked if Obama appoints an out lesbian to the Supreme Court and do think her name is being floated as a sop to us and as a deliberate carrot for Republicans to get mad about so a nomination Obama takes seriously will have a better chance of getting through.
But, again, has someone this openly gay ever before been considered so seriously for the SCOTUS? I don’t think so, though I’d love to be proven wrong.
To have her name included in this short of a list is a an honor for her and progress for us, and I’m much more interested in that than in her score on the bar exam– I love that the first commenter here trolled all you idiots off in that direction immediately. Nicely done, but evil.
MadProfessah
Elena Kagan is on the shortlist, but she’s the solicitor-general (just confirmed) and will probably wait for the next appointment (come on Justice Stevens!). I don’t believe she’s an out lesbian. I am surprised Sullivan hasn’t been nominated for a 9th Circuit appellate position yet…
Sam
@tavdy79: Roberts is 54, making him the youngest current justice. But Sullivan would still be younger.
@NewYorkness: Kagan is most definitely not out.
Mister C
And if he don’t SO FUCKING WHAT?? Just make sure he/or she is QUALIFIED and NOT A RIGHT WING NUT CASE
Lee
Landon, if you mean you’re under the impression that the list Sullivan’s on is coming from the White House, I’m aware of no evidence of that.
If you mean only any other serious lists, [the linked article says, “Sullivan’s name appears on lists compiled by the Washington Post, Wall Street Journal and numerous law blogs”], then I agree.
President Clinton was the first [and last, so far] to appoint an out gay as federal judge, lesbian Deborah A. Batts. Another lesbian Clinton made a federal judge, Emily C. Hewitt, was promoted a month ago to Chief Judge of the U.S. Court of Federal Claims by…drum roll….Barack Obama.
obey wan
I was thinking that Hillary Clinton would be a shoe in, for the same reason she was a shoe in for Sec of State, that she is buddies will the republican senators and they will all vote for her confirmation. But she will be a campaign issue useful for the RW just like Teddy Kennedy is/was in the 80’s. In 2012 they will run as needing a GOP as president to appoint justices other than Hillary, but Obama should choose Hillary just to get rid of her as competition for 2012.
dgz
while i would personally *love* it if sullivan were nominated, and a lot of senators from both parties would prefer a nominee who isn’t on the bench already (http://apnews.myway.com//article/20090504/D97V6D4G0.html), obama mos def won’t appoint her. why? because:
1) he spoke about appointing someone whose understanding of the law isn’t “academic.”
2) she’s gay and lives in california. (i.e. wave goodbye, all appearance of bipartisanship.)
3) she isn’t sonia sotomayor, who is THE frontrunner, imho.
but i really don’t think bar failure has anything to do with it.
Pete
She actually failed the bar exam recently and to many it only pointed to the deficiencies of the exam, since she’s not only universally praised for her intelligence, but even her old Harvard prof called her one of the best students he’s ever had.
My cousin graduated from Stanford Law and thinks she’s got more than enough intellectual firepower to be a leader on the Court. The fact that she’s openly gay is just a tremendous plus. God, I hope she’s picked.
cleareyes
She failed the test a couple decades after she finished law school, after she’d passed other bar exams, after Larry Tribe said she was the best student he’d ever had, and after she’d been dean at Stanford. You can’t generalize about Sullivan’s situation since hardly anyone else has ever been in exactly her position, but academic weakness is simply not an issue for her–the political/religious right might not like her sexual orientation, but anyone who has looked into the situation would agree that she’d be among the smartest justices on the Court if she were selected. From what I understand, a spot on the appeals court is hers for the taking, but she is enjoying her job in a law firm. The money is obviously better, she can be a regular citizen, and she wouuldn’t have to go through confirmation.
nmrosen
@Lee: Agree. Obama is a pragmatist supreme.