It's been seven months since California Supreme Court Justice Joyce Kennard retired and yet Governor Jerry Brown still has not nominated anyone to replace her. When Justice Marvin Baxter announced his retirement in June, Brown named Stanford law Professor Mariano-Florentino Cuellar as his replacement five weeks later, and Cuellar was confirmed by a state commission and approved by voters November 4.
The conventional wisdom was that Brown would wait until after the election to fill Kennard's seat, although the reasons why are a mystery to us. It wasn't as if Brown was ever in danger of losing his re-election bid if he picked someone who was controversial. And the likelihood of that person losing a retention election was also small. However, those familiar with Brown's history know that he's made controversial Supreme Court picks before (Justices Cruz Reynoso, Joseph Grodin, along with chief Justice Rose Bird, were swept out of office by voters in 1986).
Since Brown is taking his time, we'd like to suggest that he nominate an out LGBT person. There has not been an openly LGBT person on the state Supreme Court, even as the court decides cases that affect the community. Recall that the state's high court heard same-sex marriage cases in 2008 and 2009. Famously, its decision in 2008 to legalize same-sex marriage opened the doors for thousands of couples to tie the knot before the anti-gay forces struck back with Proposition 8, the same-sex marriage ban. Ultimately, the high court upheld Prop 8, as well as the 18,000 marriages performed during the brief window before voters passed the marriage ban.
Immediately after the court's decision, the American Foundation for Equal Rights filed a federal lawsuit challenging the validity of Prop 8. A trial before then-Chief District Judge Vaughn Walker was held in 2010 and he ruled Prop 8 was unconstitutional. The state Supreme Court granted Prop 8 standing to appeal to the U.S. Supreme Court, prolonging an unconstitutional ban and putting marriage equality on hold.
Walker was outed during the trial, but being gay was not the reason he found Prop 8 unconstitutional. Yes, Walker brought his life experiences to the bench, like any other jurist, but the defense put on a horrendous case, and the plaintiffs were thorough in examining the ways in which marriage is an important institution for those who want it. It boiled down to discrimination.
An out LGBT Supreme Court justice would bring their life experiences to bear, but we're not suggesting he or she would always rule favorably on cases affecting the community just because of their sexual orientation or gender identity. We are suggesting that in a state as diverse as California, and with a high court that is diverse, adding an out LGBT person would increase that diversity.
The court is also lacking in an African American justice. Given Brown's previous picks to the court were both law professors, perhaps he could identify a qualified LGBT African American law professor.
We're highlighting the need for an out person on the Supreme Court because it's likely there already is an LGBT person on the bench. So far that person has not made a public declaration, apparently preferring to follow the Tim Cook approach whereby friends and colleagues may know, but the general public does not. Being in the closet does nothing to help further our visibility in the public arena. We would encourage that justice to publicly come out, and in the meantime, Brown should review candidates with an eye on diversity – as well as their qualifications.