LGBT Judges

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.

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5 Responses

  1. Jim Maloney says:

    It’s probably fear of the appointment and confirmation process that keeps most federal candidates in the closet. I’m probably not going out on a limb by saying that a Republican President appointing an openly LGBT judge is highly unlikely. By the same token, it’s not hard to imagine losing a confirmation because too many Senators were uncomfortable supporting an openly LGBT candidate. The stakes are much higher at the Court of Appeals and–of course–the Supreme Court level. So we have no openly LGBT federal appellate judges, and, relatedly, the “don’t ask, don’t tell” rule is largely alive and well in the federal judiciary.

  2. Doug B. says:

    Based on the listed names above, it would appear that female open LGBT judges are far more common than male LGBT judges. Relatedly, my friend and former co-clerk Danny Alter was poised to be the first openly gay man to get a nomination until the silly politics of nominations led the White House to back away. The issues that led to the withdrawal were not about LGBT directly, but it seemed to me part of the backstory.

    • Courtney Joslin says:

      Hi Doug. Thanks for your comment. The gender break down of the openly LGBT state supreme court justices is very interesting. Given how small the numbers are, however, it is difficult to know what to make of this. In addition, the information I cited in my original post is woefully incomplete. Currently, no one systematically gathers and keeps track of this information. There is a bill pending in California (SB 182) that would, in the words of the state LGBT lobby group: “ensure that voluntary data on the gender identity and sexual orientation of potential judges is gathered through the state’s Judicial Applicant Data report, alongside existing questions on gender and racial or ethnic identity.”

  3. KJ DINKBAG says:


  4. Glenn Cohen says:

    Great post Courtney. You may want to consider the way in which this plays into points made by Bill Rubenstein in The Myth of Superiority, 16 Constitutional Commentary 599 (1999), which I often teach (along wit The Myth of Parity) in first year Civ Pro.