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Supreme Court Justices:

In the last couple of days, I for the first time learned about a woman who was apparently nearly nominated for the Supreme Court before Justice O'Connor, and a likely homosexual or bisexual who was nominated for the Supreme Court. Who were these people? I will post the answer in the comments thread, so think about it before you read the comments.

MDM (mail) (www):
Well, Harold Carswell was later caught soliciting an undercover male cop for sex, so I assume he's the second one.
7.6.2005 1:24pm
Eugene Volokh (www):
In 1971, President Nixon was apparently about to name Mildred Lillie, then a California Court of Appeal judge, to the court; but the ABA rejected her as unqualified, apparently because of her sex. See here.

In 1970, President Nixon nominated Judge George Harrold Carswell for the court; the Senate rejected him, partly because of his record on racial questions and partly because of his perceived intellectual mediocrity (he's the one about whom Sen. Roman Hruska famously said, "Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they?"

After his failed nomination, Carswell resigned his judgeship, ran unsuccessfully for the Senate, and returned to private practice. Then, in 1976, according to a Legal Times article, "Carswell was convicted of battery, in 1976, after he was arrested for making advances to an undercover police officer in a Florida men's room." (I learned this from Wikipedia, but confirmed this using other sources.)
7.6.2005 1:25pm
Steve:
Simple mathematics makes it rather likely that we have already had the first gay Supreme Court Justice. It's not like homosexuality is a recent invention, after all.
7.6.2005 1:38pm
Michael Barone (mail):
As I recall, Justice Benjamin Nathan Cardozo never married. He was a consensus choice when, as a Democrat, he was nominated by Republican Herbert Hoover in 1932.
7.6.2005 1:45pm
John Kleebourg (mail):
Oliver Wendell Holmes was gay, wasn't he?
7.6.2005 2:14pm
Bart Motes (mail) (www):
John,

OW Holmes was married for 50 odd years.
7.6.2005 2:45pm
Chad (mail):
If he were gay, they would've been odd indeed.


John,

OW Holmes was married for 50 odd years.
7.6.2005 3:15pm
ReaderX:
What did he do during the even years?
7.6.2005 5:50pm
PAC:
Marge: Do you want your son to become Chief Justice of the Supreme Court or a sleazy male stripper?

Homer: Can't he be both, like the late Earl Warren?

Marge: Earl Warren wasn't a stripper!

Homer: Now, who's being naive?
7.6.2005 7:51pm
John Armstrong (mail):
Steve: that would be true if being on SCOTUS and being homosexual were independent, which really calls for justification. I can think of various reasons why homosexuals might be less likely to be appointed (e.g., less inclined to public positions lest they be outed).

Mind you, I'm not saying your conclusion is wrong -- just that it doesn't follow from "simple mathematics".
7.6.2005 9:19pm
Freddy Hill (mail):
John Armstrong, Steve:

The following sentence may serve as a vivid illustration of John's rebuttal: "Simple mathematics makes it rather likely that about half the Supreme Court Justices have been women."
7.7.2005 12:44am
Freddy Hill (mail):
John Armstrong, Steve:

The following sentence may serve as a vivid illustration of John's rebuttal: "Simple mathematics makes it rather likely that about half the Supreme Court Justices have been women."
7.7.2005 12:44am
Freddy Hill (mail):
John Armstrong, Steve:

The following sentence may serve as a vivid illustration of John's rebuttal: "Simple mathematics makes it rather likely that about half the Supreme Court Justices have been women."
7.7.2005 12:45am
Insane Legal Genius:
I was curious why Judge Lillie was rejected, as it certainly seems she was at least as qualified as O'Connor when appointed, so I punched up stories about her on ProQuest in the October, 1971, time frame.

It looks like she got "Borked" by some of the same liberals who would "Bork" Bork 16 years later, particularly Ted Kennedy and Larry Tribe.

And it looks like because they "Borked" Judge Lillie, the liberals were the direct cause of Rehnquist being appointed in her place (the other open seat being reserved for a Southerner, which Powell got). Maybe someone should ask Kennedy and Tribe whether they now think "Borking" Judge Lillie was a good idea.

These seem to be the key details. A 10/14/71 NYT story says Judge Lillie had been appointed Asst. U.S. Attorney in 1942 as a reward for her Democratic party activism, and then was appointed a judge by Earl Warren, serving with distinction for many years -- so she had vastly more judicial experience than O'Connor had when appointed. Other stories during that week make clear Nixon wanted to make history by appointing Judge Lillie.

So you'd think the liberals would have been elated with Judge Lillie being placed on the Supreme Court. You'd think wrong. Having Nixon appoint a woman who was merely a partisan Democratic wasn't good enough for the liberals; a 10/16/71 Wash. Post story reports on Ted Kennedy's objection to the "appalling" way he thought Nixon was handling the nomination, and a 10/17/71 NYT story says liberals were insisting on a ultra-liberal civil rights activist like Constance Baker Motley, not just a regular liberal Democrat like Judge Lillie.

So they "Borked" Judge Lillie. Tribe was happy to do the dirty work. He researched her record, noticed a few recent reversals, and harped on these recent reversals as his basis for claiming, using the sort of extravagent rhetoric for which he was destined to become famous, that the reversals cast "grave doubts" on Judge Lillie's qualifications to serve on the Supreme Court (Wash. Post, 10/18/71).

Doing this research, pitching it to the press, and then sending it to the ABA to serve as part of the case for rejecting Judge Lillie as unqualified wasn't the end of Tribe's "Borking" activities. No, he had to go the extra mile. From the 10/18/71 Washington Post article, it appears Tribe also called up his former boss, retired Chief Justice Traynor of the California Supreme Court (for whom he'd served as a law clerk), to get him to speak out against Judge Lillie, Chief Justice Traynor then did just that (as quoted in that article). I'm not sure whether Tribe's apparent request of Traynor that he speak out against Judge Lillie, and Traynor's negative comments, violated any technical rule of legal ethics. But this was tawdry stuff. It's amazing Tribe and other liberals went to such lengths to trash a reasonably qualified woman.

Ironically, it was Rehnquist, working for Nixon on the nomination, who rebutted Tribe's smear tactics against Judge Lillie. He pointed out, for example, that Judge Lillie's overall reversal rate was no worse than average (Wash. Post, 10/20/71). But Tribe's tactic worked, in the short run (defined in days), as the ABA rejected her as unqualified. It was only after Nixon's choice of liberal partisan Democrat Lillie was rejected that Nixon selected arch-conservative partisan Republican Rehnquist. Who'd they think Nixon would appoint if they successfully trashed Judge Lillie? Tribe?

Assuming these news articles are accurate, it seems the wise course would have been for Tribe, Kennedy, and the other liberals to embrace Judge Lillie and actively defend her, because she obviously was the most liberal nominee they could possibly imagine seeing nominated, rather than "Borking" her and risking ending up with someone who in their view would be a much worse justice, which is exactly what happened.
7.7.2005 1:02am
Charlie Hallinan (mail):
There is an even earlier entry for the list of women who nearly made it to the Supreme Court before Justice O'Connor, i.e., Judge/Justice Florence Ellinwood Allen. She was the first woman to sit on a state Supreme Court (Ohio's, to which she was elected in 1922. but note the caveat below). She was also the first woman to serve on a federal Court of Appeals (the 6th Circuit, via Roosevelt's nomination in 1934). In fact, she was the first female judge on any Article-III court. (The federal circuit courts didn't get their second woman until Shirley Hufstedler in 1968, and the Ohio Supreme Court remained all-male from the time Justice Allen left until the election of Alice Resnick in 1988.) Judge Allen was considered for nomination to the Supreme Court by Roosevelt &by Truman (and maybe by Eisenhower), but she never got the nod. Some commentators (cited by Justice Ginsburg in a 1995 speech at Fordham) say that Truman's decision was driven by objections from the Chief Justice and other members of the Court. Those worthies, the story has it, believed that a woman's presence would inhibit their deliberations in conference, where they sat around mulling the law "with shirt collars open and shoes off." (Apparently in those days "unbuttoned discussions" were a literal attribute of the conference.) A reasonably complete short take on Judge Allen's life and accomplishments (in a student paper written for Barbara Babcock at Stanford) is on-line at http://www.law.stanford.edu/library/wlhbp/papers/flo.html.

Judge Allen also comes close to qualifying as an entrant in Eugene's other category, "likely homosexual or bisexual who was nominated for the Supreme Court." Of course, she doesn't fit because she was never nominated. But a fair number of people have inferred the gay part from her lifestyle: she never married and had close, devoted relationships, first, with another woman lawyer (her campaign manager in the twenties &thirties), and then with a female "distant cousin" with whom Allen lived from the thirties until Allen's death in 1966. The cousin was Judge Allen's full-time "companion &hostess" and has been described as functioning like "a typical suburban housewife." For me, that's not quite a trout in the milk, but others have been willing to draw the inference, including the author of a 1998 Case-Western Ph.D. dissertation arguing that Allen's career exemplifies the importance of "homosexual networks" in facilitating women's success.

Caveat: I claim Judge Allen as the first woman to serve on a state Supreme Court notwithstanding the amusing events surrounding Johnson v. Darr (114 Tex 516, 272 S.W. 1098), which was decided by a specially empanelled all-female Texas Supreme Court in 1925. One of the parties to the case was an association (Woodmen of the World - it is not possible to make this stuff up) the membership of which apparently included virtually every male lawyer &judge in the State of Texas. The obvious problem: the entire Supreme Court was disqualified from hearing the case and the usual suspects were unavailable to fill in. The solution: fill all the temporarily vacant spots with women lawyers, since women weren't eligible for membership in the Woodmen of the World. The court sat from January 8 to May 23, 1925. (For more, see http://www.texasalmanac.com/history/highlights/supreme/ .)I don't count this as displacing Judge Allen's historic achievement because the case is captioned as having been decided by "a Special Supreme Court of Texas."
7.7.2005 11:13am
Sparky (mail):
Likely homosexual or bisexual nominated for the Supreme Court: My guess is Souter.
7.7.2005 12:47pm
Skipper (mail):
I can't resist mentioning that, in puzzling through Professor Tribe's lengthy statement about abandoning his treatise, as part of our blog on Harvard plagiarism, I stumbled across a mention that Justice Frank Murphy was gay. Professor Tribe mentioned Murphy in paragraph # 17 of his long letter (our numbering), which you can find here.

He described Murphy as "genuinely great." I had never even heard of Murphy, though perhaps that says more about my lack of learning than anything, so I Googled him, and found this tidbit, to which we linked in our annotations to Professor Tribe's letter, saying Murphy was so strung out by the illegal prescription drugs to which he was addicted that he apparently let other justices, and his law clerks, vote for him.

We linked to that as part of having some fun about various things Professor Tribe said in his letter, but declined to link to something else I uncovered, that Murphy apparently was gay, having never married and having lived most of his adult life with another man. See here. Perhaps Murphy being gay in part explains Professor Tribe's idiosyncratic ranking of Murphy as among the "genuinely great" justices, right up there with people like Justice Jackson. It seemed worth mentioning as part of this "who was the first gay justice?" debate, which seems even more important than our slicing and dicing of Professor Tribe's lengthy letter [;-)]
7.7.2005 6:54pm