Yesterday, the Massachusetts Governor’s Council confirmed (by a split 5-3 vote) the first openly lesbian or gay member of the Massachusetts high court. And, of course, in recent weeks, there has been much discussion in the media and in the blogosphere about the relevance of Judge Walker’s sexual orientation with respect to his qualifications and ability to judge impartially. The appointment of Justice Lenk and recent events involving Judge Walker offer us a good opportunity to reflect on the status of LGBT people in the state and federal judiciary.
In the last several years, openly LGBT people have joined a number of state high courts. There are two openly LGBT justices on the Oregon Supreme Court — Justice Rives Kistler and Justice Virginia Linder, who became the “first openly lesbian judge to serve on a state supreme court anywhere in the US” when she was appointed to the court in 2007. Earlier this year, Justice Sabrina McKenna became the first openly LGBT person to join the Hawaii Supreme Court. Just months earlier, Justice Monica Marquez joined the Colorado Supreme Court as its first openly LGBT member. Although actual statistics are hard to come by, it appears that there are a number of openly LGBT judges sitting on lower state courts. It has been reported, for example, that there are 15 openly LGBT judges sitting on state courts in Cook County, IL. And this past fall saw the first election of an openly transgender judge, Judge Victoria Kolakowski.
While there unquestionably are more openly LGBT judges today than there were 10 or 20 years ago, they still comprise a very small percent of all judges, and this is particularly true on the federal level. In 1994, Judge Deborah Batts became the first openly gay Article III federal judge. Close to 20 years later, with the retirement of Judge Vaughn Walker, Judge Batts once again holds that title. Judge Batts is a federal district court judge; there are no openly LGBT members of the federal appellate courts.
Given that many people look to the federal government as a source of protection for vulnerable groups, it is interesting to consider why the states seem to be doing a better job of getting qualified LGBT people on the bench.