After David Souter’s May 1st announcement that he would soon be retiring from the Supreme Court, speculation swirled that one of Barack Obama’s top choices to replace the outgoing Justice would be 54-year-old Stanford University law professor Kathleen Sullivan, who, if appointed, would be the first openly gay member of the nation’s highest court.
As soon as word spread that Souter was stepping down, Sullivan’s name was featured prominently on lists of probable candidates compiled by such publications as the Washington Post, the Wall Street Journal, the New York Times, and the National Journal, as well as a host of law blogs.
Meanwhile, the Gay and Lesbian Victory Fund and many other gay-rights organizations began actively advocating on Sullivan’s behalf, depicting her as a nominee who, as a female and a homosexual, could be a potent symbol of the Obama administration’s commitment to “diversity.”
When White House aides have been asked whether the President will factor sexual orientation into his selection process, they have remained mum. One thing, however, is certain: If indeed Obama does name Sullivan to the Court, it will not be for reasons of diversity alone. It will also be because her judicial philosophy dovetails seamlessly with his own.
Most notably, Sullivan views the U.S. Constitution as a “living document” whose meaning is constantly subject to change and reinterpretation over the course of time. In 2009 she effusively praised a collection of writings, compiled and published by the American Constitution Society for Law and Policy (ACS), which echoed this “living document” perspective.
“This edited collection is a treasure trove for those who love the Constitution and believe that its greatest strength is that it was written in broad and majestic generalities intended to be adapted over time to the needs of future generations,” Sullivan gushed.
In a similar spirit, Sullivan lauds the late legal scholar John Hart Ely for his assertion that courts must sometimes take an activist, rather than a merely interpretive, role with regard to existing law. Specifically, she praises Ely for having “argued that it was not enough for courts to ensure clear channels for participation in the political process if certain groups of political participants [most notably homosexuals] … could not dispel prejudice that prevented them from finding allies …” Moreover, she approvingly paraphrases Ely as having held that courts “should intervene when the political process is undeserving of trust or judicial deference.”
Sullivan’s similarities to President Obama extend well beyond her rejection of Constitutional originalism. Consider, for instance, her tendency to categorize people as members of competing demographics, designating some as victims and others as victimizers.
Sullivan once served on a panel that sought to promote precisely this worldview, the California Governor’s Commission on Hate Groups (CHG). This Commission defined hate crimes as acts perpetrated “wholly or partly because of an actual or perceived protected characteristic of the victim—typically disability, gender, nationality, race or ethnicity, religion, or sexual orientation.” Characterizing these crimes as widespread throughout California, the Commission urged the state government to “help turn the tide against hate groups” by implementing specialized, taxpayer-funded “training” programs for executive staff from a host of state agencies and “crime-victim specialists across the state.”
According to Sullivan and the CHG, California in 2001 was being overrun by a post-9/11 epidemic of hate crimes targeting “actual and perceived Arabs and Muslims.” The incidence of “anti-Arab/Middle Eastern” hate crimes increased 345.8 percent in 2001, said a major CHG report, while “the number [of hate crimes] reported in the anti-Islamic subcategory increased 2,333.3 percent.” But as separate analyses by Michelle Malkin, Investor’s Business Daily, and National Public Radio have noted, the CHG numbers were derived by means of severely flawed methodology and thus were grossly inflated.
In 2001 Sullivan served on the National Commission on Federal Election Reform (NCFER), which was co-chaired by former Presidents Gerald Ford and Jimmy Carter. On July 31st of that year, the Commission released its final report, which lamented that only “seventy-one percent of voting age citizens were registered to vote,” in part because “the registration laws in the United States are among the most demanding in the democratic world.”
“Voter registration laws,” the report explained, “depress voter turnout by raising the cost of the exercise of the franchise.... The primary sufferers of voter registration are migrants and the less educated…. The young, the poor, and renters are more likely to move and … less likely to be motivated to register and less likely to have the skills to manage it, giving rise to sizable differences in voter registration by education.”
Sullivan and her fellow Commission members also concluded that measures aimed at verifying the identity of voters at polling places discriminate against low-income and minority voters. According to the Commission, “Signature validation imposes some significant costs on election administrators. Proof of identity places burdens on voters, especially voters who are poorer and urban. At least five percent of the voting age population does not have photo identification.” The implication was clear: Identity-verification measures at the polls were discriminatory and perhaps even racist.
Sullivan et al. further complained that the “disfranchisement of felons” had created a situation where 4.2 million people were ineligible to vote “on account of current or prior felony conviction.” The Commission’s ultimate objective was to transform felony disfranchisement into a civil-rights issue and a full-fledged movement to overhaul existing election laws.
Gay groups and activists were left frustrated when Obama did not select an openly gay member to serve in his Cabinet. But since the president has emphasized “diversity” as essential in his Supreme Court nomination, there is good reason to believe that the gay community -- and those on the Left who sympathize with Sullivan’s record of judicial activism -- will not be disappointed when he finally makes his choice.