What Would Be Scarier Than A Romney Presidency? A Romney Supreme Court

With the Supreme Court mulling over whether to consider marriage-equality cases, it’s worth taking a moment to think about who President Romney would be appointing to the Court.

There’s the possibility of at least one and probably more justices stepping down over the next four years, among them Ruth Bader Ginsburg, a reliable liberal justice (by the Court’s relative standards, anyway).

Now, for most voters, the Supreme Court falls somewhere between the National Park Service and the Post Office as a motivating political factor in the presidential race. However, appointees to the Court are around a lot longer than the presidents who appoint them and craft the shape of law for years (and decades) to come. And Romney’s likely list includes would-be nominees who have a track record of opposing gay rights:

  • Former Solicitor General Paul Clement tops the list as the man most likely to be nominated. Among Clement’s distinguishing characteristics: he’s the guy that John Boehner & Co. hired to defend DOMA after the Obama administration refused to do so. When Clement’s law firm dissociated itself from him and the case, Clement resigned in protest, proving that he’s a man of principles, albeit reprehensible ones.
  • Brett Kavanaugh, a judge on the U.S. Court of Appeals and a former aide to George W. Bush who helped special prosecutor Ken Starr during his investigations of Bill Clinton. Bush used Kavanaugh’s appointment to shore up his conservative credentials by kicking off a campaign against “judicial activism” that featured an attack on marriage equality.
  • Diane Sykes, also on the U.S. Court of Appeals, who related to a conservative Catholic group that she once told colleagues, “You and I have important work to do, maintaining ethical standards.” While it may be no reflection on her, Sykes’ former husband, Charlie Sykes, is well know in Wisconsin as a conservative talk show host who is a regular opponent of  marriage equality.

These three are named frequently as Romney’s likely choices, but like a judicial version of Oscar nominees, you can come up with your own list. The main point is that conservatives will be looking for Romney to prove his fealty by giving them someone who shares their beliefs. And as the court has proven of late, it doesn’t take its own precedents all that seriously. It may not just be marriage equality that’s up for grabs at the Court. It could also be anti-discrimination measures. Think about that on Election Day.

Photo: Gage Skidmore

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  • Guillermo3

    Clarence Thomas could be Chief Justice.

  • jwrappaport

    Sloppy writing folks – there isn’t one giant court called “the US Court of Appeals.” There are 13 federal judicial circuits, each with its own separate court of appeals and set of judges. Kavanaugh is a judge for the DC Circuit, and Sykes is a judge for the 7th Circuit. Kavanaugh has a much more impressive CV, but who knows. I just don’t care for Clement.

    I’m really pulling for Kennedy to save gay rights with Breyer and the three ladies – allow the 9th Circuit decision in Perry to stand and subject all gay marriage laws to heightened scrutiny, thereby eliminating DOMA and all state gay marriage bans. It would be bold, but it would forestall what would likely be long, expensive, piecemeal litigation to force states to recognize gay marriages from other states under the Full Faith and Credit clause.

    It would be very cowardly for the Court to hide behind the law and allow the states to discriminate or pretend that it is duty bound to respect that discrimination, but then again, that’s been its tone in even the favorable gay rights decisions. I’m suddenly reminded of the fatuous concurring opinion of the much overpraised Sandra Day O’Connor in Lawrence – she said that the state may very well have a legitimate and legally defensible interest in denying gays the right to marry that does not stem from animus toward homosexuals, but rather a rational interest in preserving marriage itself. Or the fact that she thought an anti-sodomy law was neutral in its application to gays and straights alike. I do hope those enormous courtroom doors didn’t hit her rear on the way out…

    Obama had better win this election and save an already conservative court from getting far worse.

  • aubrey

    I agree, jwrappaport, that a Romney win could affect SCOTUS in heinous ways for decades.

    However, I am really troubled by Obama’s recent reaffirmation of state’s rights re: marriage equality.

    Obama has clearly detailed how he thinks this should go – and it involves a state-by-state “discussion” (his term), no federal involvement, no federal direction.

    If we take Obama at his word, I can see Obama asking SCOTUS (if Obama is still here next spring) to limit their review of DOMA to only Section 3.

    I think we’re fooling ourselves if we think Obama really wants to see national equality for lgbt couples, families, individuals. (Obama’s handling of ENDA, and of the ‘Federal ENDA’, only underscores that suspicion).

    The Republicans are a giant step backwards. But Obama has no conviction to follow re: the lgbt community. Once this election is over, the only thing we have that has worked for our advantage (money, volunteers, votes) will be on no consequence to him.

    And I don’t see a lot of hetero Dems criticizing Obama for his support of state’s rights in the MTV interview, either.

  • Spike

    Wow, Queerty, did you come up with the idea of a President Romney nominating the two or more Supreme Court nominees all by yourself? How incredibly relevant. BTW, are you aware the this years election will not be held on Nov. 3rd? Just checking.

  • jeff4justice

    1) Democrats helped vote in Alito & Roberts to the Supreme Court when Bush was President. Did ya’ll forget that?

    2) Republican appointed judges have been striking down discriminatory laws.

    4) The 2-party system is pathetic. NO one in business would limit themselves to 2 choices when hiring an employee or hiring a contacted company for a job so limiting our vote to 2 options is stupid. Alternative parties do not take corporate donations, there’s media bias/blackout and unfair election laws yet despite this more and more voters are leaving the 2party system.

  • jwrappaport


    1) It’s very difficult to derail a Supreme Court nomination by an opposing party. Alito was 58-42 – not exactly a ringing bipartisan endorsement. Roberts had better support, but again, it’s not easy to derail a nominee.

    2) We’re talking about the Supreme Court, not appeals/district courts.

    4) Not sure where number 3 went, but I agree – the system is flawed. That said, I am not voting for Jill Stein or some other candidate who’s great but doesn’t stand a snowball’s chance in Tucson of winning. It’s a classic prisoner’s dilemma, and I’m not going to defect when I have a good chance of seeing a non-enemy prevail over someone who wants to further legislate our inequality into law.

    I share your distaste for both parties, but surely you must see that Obama is an almost infinitely better choice when you consider what the GOP has to say about us.

  • GreenmanTN

    You have to have CAUSE to oppose a Supreme Court nominee, written decisions to point to so you can legitimately oppose a nominee for the Supreme Court without it seeming like pure partisan bias.

    Unless you’re a Republican of course, and opposition to reason is a point of pride.

    It has been true for a LONG time now that most SCOTUS nominees have written very few opinions. The less they say, the less there is to oppose.

    The flip side of that is sometimes even the people who appoint them don’t know that much about them. That’s how George H.W. Bush (Bush the elder) came to appoint David Souter, who was gay. Closeted, but still.

    But make no mistake. Justice Ginsberg will very likely retire soon. She is one of the 4 “liberal” (more or less) Justices on the court. If even ONE of the liberals are replaced it will take DECADES to undo. Precedents will be set. Rules will be made.

    You think we have an uphill battle now? Just you wait. THAT is what gays stand to lose in this election. Gay and voting for Romney? You’re BENEATH contempt and I don’t give a fuck how you excuse it to yourself. You’re signing gay rights away for the foreseeable future.

  • Guillermo3

    @GreenmanTN: GreenmanTN,Thank you!!!
    As Dan Savage commented in reply to a question about how one could
    be a gay Republican:”be a self-hating homophobe”. Guess Dan doesn’t
    savage love Log Cabin on his waffles.

  • Guillermo3

    @jwrappaport: Right, jwrappaport,
    Looks like once again its a choice between the evil of 2 lessers.

  • Guillermo3

    @jeff4justice: Wish you were right,jeff4justice,
    about people leaving the system,but I don’t think that’s true.Much worse,
    many people don’t vote at all,thinking[foolishly,in my opinion]that to be
    an effective form of protest.

Comments are closed.