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    Who Nominates a Supreme Court Justice Is the Best Predictor of How that Justice Will Vote in Gay Rights Cases

    paulaBy Paula Canny, Esq.

    Last month, in a 5–4 decision, the United States Supreme Court ruled that denying marriage rights to same sex couples violates the United States Constitution. One year earlier, the same 5 Justices ruled that DOMA was unconstitutional. How the majority of five got to the Court is important to understand, especially as it relates to the upcoming Presidential election.

    Only the President of the United States holds the power to nominate a Supreme Court Justice. The Constitution of the United States bestows that authority upon the President. The United States Constitution also provides that there are 9 Justices on the United States Supreme Court, each holding one vote.

    All of the marriage cases were split decisions, with the same 5 Justices constituting the majority. The losing group of Justices (the same 4), in their dissenting opinions, are vitriolic in their criticism of the majority. The two sides are light years apart in perspective.

    Those decisions could have been 7–2 decisions had the United States Supreme Court found that Al Gore was the rightful President and not George W. Bush, back in 2000. That Supreme Court decision, too, was a 5–4 decision with the 5 voting for Bush, and against Gore, having been nominated by Republican Presidents, and 3 of the 4 voting for Gore having been nominated by Democrats (with one outlier Republican siding with the three). And so George W. Bush became President, for two terms, nominating two Justices to the U.S. Supreme Court, Chief Justice Roberts and Justice Alioto. Not surprisingly, Chief Justice John Roberts, and Justice Samuel Alioto Jr. are not in the majority of 5. Instead, their votes show they do not hold gay rights in high regard, if at all.

    The longest sitting Justice of the Supreme Court is Justice Anton Scalia, nominated by President Ronald Reagan and confirmed by the Senate in 1986 by a 98–0 vote. Justice Scalia wrote the nastiest dissenting opinions in the marriage cases, arguing DOMA is Constitutional and gay marriages are not legally recognizable. In his Obergefell dissent, Justice Scalia writes, “Whoever thought that intimacy and spirituality were freedoms…Ask the nearest hippie.” At age 79, Justice Scalia has surpassed his life expectancy by 3 years. Let us hope his seat is filled by a President who is a Democrat.

    President Ronald Reagan also nominated Justice Anthony M. Kennedy, who joined the Court after a 97–0 Senate confirmation in 1987. Justice Kennedy has been the swing vote, vote number 5. Justice Kennedy is the author of Obergefell, a beautifully written opinion recognizing the sanctity of same sex relationships and a Constitutional requirement that all states recognize and provide for same sex marriages. But other than Justice Kennedy, the Justices vote in alliance with the politics of the party of the President who nominated them to the Supreme Court.

    Clarence Thomas was nominated by President George H. W. Bush and was confirmed by the Senate in 1991. Justice Thomas is opposed to legal recognition of same sex marriage, and would have found DOMA Constitutional.

    The four Justices in the majority of 5 in the marriage cases were nominated by Presidents who are Democrats.

    President William Clinton, a Democrat, nominated Ruth (there’s Ruth in Truth) Bader Ginsberg, confirmed by the Senate 96–3 in August 1993, and Stephen G. Breyer was confirmed 87–9 by the Senate in 1994.

    President Barrack Obama, a Democrat, nominated Sonia Sotomayer, who was confirmed by the Senate 68–31 in 2009, and Elena Kagan, who was confirmed by the Senate 59–41 in 2010.

    The reason why we need the next President to again be a Democrat should now be obvious. The power of nomination to the Supreme Court is huge because who sits on the Court is huge. The next President will most likely nominate one, if not more, Supreme Court Justices. Based on whom Republican Presidents have nominated (save the independent-thinking Justice Kennedy), and past conduct being a predictor of future behavior, a Republican President would most likely nominate a Justice of the ilk of Scalia or Thomas, or some combination thereof.

    On the other hand, a President who is a Democrat, would nominate persons of the caliber of Justice Ruth Bader Ginsberg, Justice Stephen G. Breyer, Justice Sonia Sotomayer, and Justice Elena Kagan.

    We need the next President of the United States to be a Democrat to ensure future nominees to the Supreme Court are of the mindset to recognize equal rights for all people, regardless of sexual preference or identity. Four of the five sitting Justices nominated by Republicans are homophobic jurists. We do not need more of that. Our best hope is in a Democrat who, as President, has an abundance of fabulous legal talent to call upon in making the next Supreme Court nomination.

    Paula Canny, Esq., is a California lawyer, legal commentator, and author. She has practiced law for 35 years. Her law firm is in Burlingame and focuses in the areas of Criminal Defense, Civil Rights and Probate litigation. Paula is a Democrat. She lives with her spouse, Woody Simmons. They were married in 2008 in Redwood City, California, in the first same sex marriage ceremony performed in the San Mateo County Courthouse.