Today is Constitution Day, the anniversary of the signing of the U.S. Constitution this day in 1787.   I’ll be one of the speakers at our Constitution Day event, and have put together these brief remarks to raise the question: to whom do the rights contained in the Constitution belong?

Fifty years ago police officers entered the bedroom of Mildred and Richard Loving in the middle of the night with flashlights and arrested them.  They charged them with a felony violation of the Commonwealth of Virginia’s miscegenation law.   They subsequently plead guilty and were  sentenced to one year in prison, but the judge agreed to suspend their prison sentence if they would not set foot together in the state of Virginia for 25 years.

The Lovings moved to DC, but missed seeing their families in Virginia.  So Mildred Loving contacted U.S. Attorney General Robert Kennedy about challenging the law.  His office referred her to the local chapter of the ACLU, not NAACP.   A nice white attorney at the ACLU took the case, but the Black community, including the NAACP, wasn’t altogether excited about a high-profile constitutional challenge to Virginia’s miscegenation law being brought at that time.  Interracial marriage was not the top on their list of things to fight and, as you see from reading the black papers at the time, there was no small amount of discomfort in the black community itself about a black woman marrying a white man.

The NAACP later got involved in the case when it went to the Supreme Court, submitting an amicus brief.  And as we all know, a unanimous Supreme Court found that the Virginia statute violated the Constitution because it was  “designed to maintain white supremacy.”    This is the only time that the Supreme Court has found any form of state action to be based in “white supremacy” rather than merely discriminatory – strong words indeed, and a very important precedent was established.

Today, a group of gay and lesbian couples have found two very well-known heterosexual attorneys to represent them in a Constitutional challenge to Proposition 8.   The lawsuit, Perry v. Schwarzenegger, was filed in federal court in California over the strong objections of the leadership of the lgbt community.  The lawyers in the case, Ted Olson and David Bois have gone so far as to oppose the lgbt groups’ efforts to join the case, while having no opposition to the motion to intervene filed by the Prop 8 proponents.

Ted Olsen said, in response to the lbgt community attorneys’ objections:

“David and I have studied constitutional law longer than we’d rather admit, and I think we know what we’re doing … this case is about the equal rights guaranteed to every American under the U.S. Constitution.”

But is it?  What does it mean that this case is only about the rights contained in the Constitution?  The U.S. Constitution is a living breathing document that is just a piece of paper until it is brought to life by real people in the real world. More than that, the rights it contains are won and lost in a social context that goes beyond the conclusions of a couple smart lawyers.

The Loving and Perry cases raise some hard questions for all of us who treasure the rights enshrined in the Constitution.  Who do rights belong to?  All of us surely, but it’s more complicated than that.   How do they belong to the plaintiffs in these cases who are determined to bring a rights-based lawsuit on their own behalf, in their own names, regardless of what the lgbt mandarins think they should do and how agendas should be set?  On the other hand, do attorneys such as Bois and Olsen owe no duty to communities affected by the outcomes of these cases?  A duty to consult?  A duty to follow their collective, reasoned advice?  A duty to work together?  These are complicated problems of ethics and responsibility that the Loving and Perry case make hard to resolve easily.

The community lawyers didn’t want to bring the Loving case, yet its resolution in the Supreme Court established one of the most important legal precedents in favor of racial and sexual equality. When you look at the federal judiciary today, including the Supreme Court, a judiciary that has largely been captured by conservative judicial ideologues, it’s hard to be very sanguine that the injustice of denying marriage rights to same sex couples will be as obvious to them as it has been to Bois and Olsen.  But maybe I’m wrong.  Or maybe a big loss in the Supreme Court will fuel a more aggressive response in state legislatures to undo the injustice perpetrated by the Court.  Who konws?

In the end, how the Perry case turns out is only one of the issues that should concern us.  There is a deeper question about who gets to decide when and how a manifest injustice is remedied.  Smart lawyers, community lawyers, individuals, or someone else?  These are hard problems that boil down to who owns these rights, and who owns the injustice when rights are being abridged.

Happy Constitution Day

The Supreme Court issued a decision today authored by Justice David Souter that is likely his last opinion on the Court.   The Court decided Safford Unified School District v. Redding 8-1 that the Fourth Amendment’s prohibition against unreasonable searches and seizures was violated when public school officials searched a 13 year old girl by having her strip down to her underpants and bra and shake them to see if any “contraband pills” dropped out.  None did.  But the “none did” part wasn’t what the case turned on – instead the question was the reasonableness of asking a young girl to stand almost naked at school and prove that she hadn’t hidden drugs in her underwear when a classmate had told school officials that she had gotten prescription drugs from the girl searched.  It’s important to note that the drugs in question were not Quaaludes, speed, ecstasy or other street drugs, or even “recreational” prescription drugs such as vicodin or oxycontin, but were much more benign pain killers – prescription-strength ibuprofen and over-the-counter naproxen, common pain relievers equivalent to two Advil, or one Aleve.  Girls with bad menstrual cramps often use these drugs – you don’t/can’t get high from them.

But there she stood, shaking her bra and undies for school officials nonetheless.  As Justice Thomas argued in his dissent, wherever a pill could fit, it’s reasonable to search (he used a baseball bat in a pocket metaphor that I’ll skip for now).

Eight members of the Supreme Court felt the undie-shaking search was unreasonable under the law of the Fourth Amendment – only Justice Thomas held the view that it wasn’t, as he was the lone dissenter.  (I’ll resist the urge to think out loud about Justice Thomas’ history of sexual exhibitionism and the ironies of his dissent in this case.  It’s hard, but I’ll leave it to others to connect the dots here.)  Justice Thomas’ dissent boils down to this: discipline and rule enforcement in schools should not be governed by the Fourth Amendment (or the Equal Protection clause by implication) because school officials should be understood as having the unfettered authority parents have to discipline and regulate their children’s behavior (in loco parentis, in legal lingo).  If Savana Redding’s parents didn’t like the “zero tolerance – search your undies if you’re a suspect” policy they should have moved her daughter to another school.  (In fact, that’s what they did given how outrageous they found the behavior.)  This kind of “love it or leave it” approach to the scope of the Constitution defies belief: “hey, if you think you should have a right to better treatment, go find other people who share your views and move there.”

Chief Justice Roberts could have assigned the case to a more conservative justice than Justice Souter given that he, Roberts, was in the majority, but he didn’t.  So there is some significance to the fact that Justice Souter wrote the opinion for the overwhelming majority of the Court four days before his last day as a Supreme Court justice.   Justice Souter is no stranger to sex assault/civil rights cases, and one reading of the facts is that what happened to Savana Redding was a form of sexual assault (I don’t hold this view, but you almost feel that Souter does when you read the opinion).   Twelve years ago, Justice Souter wrote the opinion for an unanimous Court finding that Judge David Lanier could be tried for violating the civil rights of women who were told that Lanier would treat their cases favorably if they performed sexual favors for him.  Read about the case here.

What’s different about the Redding case, when compared with the Lanier case, and what might suggest that it will make a difference to have another woman on the Court (or at least a man like Justice Stevens who seems to “get” these issues), was that the Supreme Court found in Redding, unlike in Lanier, that the school officials’ conduct was not “constitutionally outrageous.”  This means that the school officials will be cut a break in this case becauase they, unlike Judge Lanier, might have been reasonably mistaken as to whether it was ok to subject Savana to a strip search looking for Aleve-like drugs based on an unsubstantiated tip.   Justices Ginsburg and Stevens wrote separately to insist that any reasonable school official should have known that this conduct ran afoul of the Fourth Amendment.  Press coverage of the oral argument in the case underscored Justice Ginsburg’s outrage at her male colleagues’ jokes about stuffing things down their underwear in junior high school.  As Dahlia Lithwick blogged at Slate about the case today, after the towel-snapping tone of the oral argument, one wonders what Justices Ginsburg and Stevens said to their colleagues in conference that got them to rule 8-1 in Redding’s favor, and got Souter the job of writing the opinion on his way out the door.

The last several weeks have been busy ones in the battle for marriage equality.  The governors of Maine and New Hampshire signed laws that allowed same sex couples to marry.  California’s Supreme Court upheld the constitutionality of Proposition 8, and we expected the New York State legislature to have a darn good chance of passing a marriage equality bill this session since the measure had already passed the Assembly and was working its way through the Senate – but then things all went haywire in Albany.  All of these efforts were plotted, led, coordinated and largely controlled by lesbian and gay litigation and policy organizations.  GLAD ran the plays in New England, and Lambda Legal, the ACLU’s Lesbian, Gay, Bisexual and Transgender Project, and the National Center for Lesbian Rights all played key roles in picking the plaintiffs, picking the state courts, and picking the state houses where the battles would be fought from Iowa to California to New York.  Almost without exception, the struggle and the strategy to secure marriage rights for same sex couples have been orchestrated by organizations that “belong to” the lesbian and gay community. These groups have held the view that it was best to take a state-by-state approach, working through state courts and state legislatures and staying clear of any federal court or congressional effort to secure marriage rights.

The whole thing took an odd turn the other day however when a newly formed group innocuously called the American Foundation for Equal Rights announced that it had filed a complaint in federal court in northern California challenging the constitutionality of California’s law restricting marriage to different sex couples.   AFER held a press conference on May 27th in which it produced two couples – one lesbian, the other gay – and two high powered and famous lawyers, Ted Olson and David Boies – both straight – who had filed a lawsuit in federal court the week before alleging that the California law violated the U.S. Constitution’s rights to Equal Protection and Substantive Due Process.  The complaint in the case is available here, other papers here.  It appears that AFER was formed exclusively or at least largely for the purpose of bringing this lawsuit.  It’s board, which it revealed in a press release issued several days after the announcement of the lawsuit, is made up, in part, of prominent Los Angeles movie business types/good guys -some of them straight, such as Rob Reiner and his wife Michelle Singer Reiner.

At the AFER press conference Olson and Boies stated emphatically that the California marriage/domestic partnership system established a separate and unequal regime that discriminated against lesbian and gay couples and denied them “the most fundamental of rights,” the right to marry the person you love.  They noted how they had been on the opposite sides of important litigation – most notably Bush v. Gore – and while Olson was a conservative and Boies a liberal, they both agreed that the U.S. Constitution secures same sex couples the right to marry, and analogized the constitutional harm here to that recognized by the Supreme Court in Loving v. Virginia.

The “mainstream” gay groups were outraged at the filing of this lawsuit, and immediately issued a statement of their own warning that this was not the right time to bring a marriage equality suit in federal court with the aim of taking it all the way to the Supreme Court.  Instead, they argued, the California problem should be resolved at the ballot box next November, and the federal marriage issues should be addressed carefully in GLAD’s “thoughtfully constructed” lawsuit challenging the federal Defense of Marriage Act.

Matt Coles, director of the ACLU’s LGBT Project, commented sarcastically in the New York Times : “It’s not something that didn’t occur to us. Federal court? Wow. Never thought of that.”

So what should we make of this new organization and its celebrity lawyers jumping into this issue with a risky strategy all Johnny Come Lately?  It’s not like straight people can’t understand the issue – after all, the lead lawyer at Lambda Legal handling the marriage litigation is heterosexual, and so was the lawyer Lambda hired to argue the issue before the Iowa Supreme Court.  Surely having two VERY prominent and gifted lawyers representing both ends of the political spectrum arguing the AFER case will impress the federal judge to whom the case was assigned, not to mention the Justices of the Supreme Court, who know them well (see below).

So often the lgbt litigation team worries about a case being filed by some inexperienced solo-practitioner who happened to have clients walk in the door and naively filed a case making all the wrong arguments and being way over their heads.  That’s not the issue here.  Olson and Boies aren’t naive, they just came to a different strategic judgment about the wisdom of going into federal court on this issue.

On the other hand, it’s hard to miss the odor of hubris that emanated from the AFER press conference and the dynamic duo’s subsequent discussion of the case in the press.  It’s almost like they’ve taken the view that the lgbt community’s lawyers got the issue started and now it’s time for the serious lawyers to get involved.  Whatever you might say about the arguments made by the movement lawyers – and I’ve been plenty critical of their decisions – you cannot deny that we’ve got very smart and effective lawyers and lawyering at Lambda, the ACLU, GLAD and NCLR.   Boies and Olson’s decision to get in now, and to get in in a way that not only ignores the work of movement lawyers, but flies in the face of their collective judgment, leaves me with a very bad taste.  Their comments betray little sensitivity to the fact that these cases are not only about the two couples they conjured up who want to marry, and are not only about the rightness of their analysis of the rights secured by the Constitution.

“If you look into the eyes and hearts of people who are gay and talk to them about this issue, that reinforces in the most powerful way possible the fact that these individuals deserve to be treated equally,” Mr. Olson said at the news conference.  “I couldn’t have said it better,” said Mr. Boies, patting Mr. Olson on the back.  But this issue isn’t about the Boies-Olson love-o-meter, it’s about a moment that has grown out of a political movement and that has  a critical ethical relationship to that movement.

What gets me about this lawsuit and the Boies/Olson part of it is the way in which it’s a win/win for them, possibly at the lgbt community’s expense.   Yea, they might win – and then they look like the big straight daddies coming in to save the lgbt community from the ill- advised judgment of it’s own less experienced lawyers.  And if they lose, well, they look all the better for taking on a difficult cause.

Ted and Lady Olson's Wedding

There is no downside for them.  Instead of showing up all Dudley Do-Right to save the day, grandstanding before the cameras about how righteous they are, they could work behind the scenes to persuade their peers, left and right, on this issue.  What I’d really like to see them do is “suspend” their own marriages and urge straight people to go on matrimonial strike until same sex couples gain full equality.  Indeed, both of them seem to LOVE getting married. Olson has been married four times.  His third wife Barbara, as most of us know, was a conservative commentator who was killed when she was a passenger on the hijacked American Airlines Flight 77 that crashed into the Pentagon on September 11, 2001.  He married his fourth wife, Lady Booth, a tax attorney who donated to the Obama campaign, on October 21, 2006 in the presence of many Washington luminaries, including Justices Sandra Day O’Connor and Anthony Kennedy.

Boies has been married three times.  He married his high school sweetheart in college. While studying law at Northwestern after they had divorced, he fell in love with a fellow law student,  Judith Daynard Fillman, who happened to be the wife of one of the law faculty, and both of them transferred to east coast law schools, Judith to Columbia (’65) and David to Yale (’66) and they married three years later.  They later divorced, but Judith Boies remains a partner in the Bois law firm.  He married his third wife, Mary McInnis, in 1982.

I’m the last person to throw stones at people who have fallen in love and committed to more than one person in their adult lives, as these two men have.  But I have little tolerance for straight people who refuse to see or distance themselves from the financial, social and personal value they have gotten out of the institution of marriage as an exclusive club only they can join.

Sure, get involved in the marriage equality movement.  Lend us your expertise, your legal wisdom and your firm and professional resources.  But you can’t have it both ways – marrying early and often and professing a principled objection to the exclusion the institution represents.

Kinda makes you wonder what other clubs they belong to.

There has been much made of Sonia Sotomayor’s life, her Puerto Rican background, her modest, if not poor, childhood, her mother, what her Latina-ness means to her, her involvement in civil rights organizations, etc.  It’s both a big part of why Obama picked her to serve on the Supreme Court and will form the basis of the attacks launched against her – it already has.  Rush Limbaugh has likened Sonia Sotomayor to David Duke, a leader of the Ku Klux Klan.

Much can be said about how these attacks/critiques are disingenuous, mean, racist, sexist and offensive.   Of course each of us is informed by our past, our experiences, the advantages and disadvantages that we have experienced.  It’s just that you notice how the disadvantages more than the advantages shape who you are.

But for the moment I’ll leave to others such as my colleague Patricia Williams to address this aspect of the opposition to Sotomayor’s nomination.  Instead I want to focus on what her life history – including but not reduced to her nomination to the Supreme Court – has meant for Latina law students.

One of the things I enjoy most about teaching at Columbia Law School is the diversity of students we have.  Our JD students come from everywhere, and have every possible background.  Many of them see themselves mirrored in the faculty and on the federal judiciary, but a good number of them don’t.   Those who don’t know they don’t, and it often takes a leap of faith or just dogged perseverence for them to feel like they belong at a place like Columbia and that they might one day be in the front of the room teaching or up on the bench judging.   Sonia Sotomayor is fully aware of the burden she carries as a role model for female students, Latina/o students, and students who didn’t come from privileged backgrounds.  We’ve talked about this over dinner.

In this regard, what follows is a letter written by a former Columbia Law Student (with her permission) to Judge Sotomayor after her nomination to the Supreme Court was announced.  Judge Sotomayor has taught a course at Columbia on Federal Court advocacy for a number of years, which students have loved, and she was the speaker at the Columbia Law School graduation in 2004.  This student copied us on the letter she sent to Judge Sotomayor:

Dear Hon. Sonia Sotomayor:

Here I sit watching you stand proudly next to President Obama as he announces your nomination to the Supreme Court and I am so incredibly proud and happy for you and your family (especially your mom!).  God bless you and keep you always.

I was one of your externs back in 2003 and was so humbled to have been chosen to work with you.  Thank you so much for the opportunity you gave me.  You impressed me so much with your integrity, wisdom and humility.  Your heart was always true.  Back then I was also co-chair of Columbia Law School’s graduating class of 2004 and when we discussed who would be our commencement speaker, I could not fathom anyone but you speaking and inspiring our class to reach their God-given potential.  If anyone could make them believe in their dreams, it would be you.  And only you deserved that honor (or so I thought).  After nominating you, the decision to invite you to be our commencement speaker was unanimous and it was one of the proudest moments of my law school career.  Thank you.

Since graduating, I have been working for the Office of the Comptroller of the Currency under the U.S. Department of the Treasury in New York.  I recently became a Senior Attorney here and am grateful to dedicate my career to federal public service.  So much has happened in the last five to six years.  I got married and have a one-year old son, Isaac.

Undoubtedly, you will change the course of American history.  That goes without saying.  But there are also so many individuals out there, including me, whose lives will be forever molded by today’s events.  While I externed for you, I lived in a public housing project in Rockaway Park, Queens — I had lived there since the age of 13 with my mother and younger brother.  My family and I were poor and constantly struggling to survive.  I never let anyone keep me down or hold me back from what I believed my path to be, but I hope you don’t mind that I will “use” you as my personal inspiration to move forward and fulfill my life’s purpose (whatever that may be).  Thank you again.

Lastly, I know that you may not remember me.  I don’t consider myself a very memorable person, which was one of the reasons I hesitated to write to you.  I also felt that you had other, more important things to do and wouldn’t have time for me.  But if I don’t write to you now, I would probably never get the chance to thank you.  You will always be in my prayers and I am looking forward to hearing people call you Justice Sotomayor.

Sincerely,

Ancris Munoz Ramdhanie
Columbia Law School Class of 2004

This is why Sonia Sotomayor’s background is important.

From Columbia Law School Professor Patricia Williams, via The Daily Beast:

President Obama’s nomination of Judge Sonia Sotomayor just plain fills me with delight. She’s brilliant, she’s fair, she’s an inspiration on many, many levels. That she is the first Puerto Rican or Latina nominee, appointed by the first Afro-Hawaiian-Kansan-Kenyan-American president, just makes this moment all the more extraordinary in our history.

But the trajectory of Judge Sotomayor’s career owes much to the collective efforts of the civil-rights movement, in its most encompassing sense. Now 54, she came of age when doors were just opening to allow significant numbers of women, Latinos, or any other sort of minority into the legal profession. I’m three years older than Sotomayor, and when I started teaching in 1980, there were six women of color in the entire United States in legal academia—four African Americans, one Asian American, and one Latina. Our numbers in the judiciary were just as sparse. So Sotomayor is among that generation of often lonely but extraordinary and persistent pioneers.

I’m confident she’ll be confirmed. At the same time, I am bracing myself for the predicted battle, some degree of which I’m already seeing in the media—to wit, commentary about her being “strident,” or “bullying,” when all examples of such seem to fall well within what any male judge would be embraced for as “decisive” rather than “opinionated. ”

On Tuesday morning I was listening to The Brian Lehrer Show on WNYC radio and a lawyer called in to complain that Sotomayor once told counsel that his brief was one of the worst she had seen and verged on the unprofessional. The caller fumed that this proved her unsuitability to serve on the highest court.

I’m sorry, but this felt like pure sexism to me. Who would ever question a male judge’s authority to declare that a brief was below par? What does it imply about her perceived credibility as “judge” that her indisputably measured declaration of substandard performance (no yelling, no posturing, just a simple declarative sentence) becomes turned into an indictment of her “temperament”?

Another thing I’m struck by is how much the media confine her “experience”—as though it were not a source of legitimate, professional information. They keep using the word “experience” in an entirely romantic way—like George Jefferson, “moving on up” from the cotton fields of the South Bronx. But the compelling weight of her experience is revealed in her résumé: summa cum laude from Princeton, editor of Yale Law Review. This much alone is no easy feat. It’s a unique and extraordinary accomplishment for anyone: male, female, white, Latina, rich, or poor.

But also she has a variety of practical experience under her belt, experience as a prosecutor, experience as trial judge, experience as corporate lawyer, experience as an appellate judge. Very few on the Supreme Court have ever enjoyed this breadth of experience.

So rather than localizing this as something internal to her—some kind of Kumbaya, “walking in the moccasins of the downtrodden” thing—let’s get a grip and remember that “experience” means her résumé. And when it comes down to the objective litany of her accomplishments, Judge Sonia Sotomayor is both a legal powerhouse and an American dream come true.

Sonia Sotomayor, nominated by President Obama to the U.S. Supreme Court, has taught a course on Federal Appellate Court advocacy at Columbia for several years.  While President Obama’s adjunct teaching job at the University of Chicago is often cited as one of his credentials, little mention has been made of Judge Sotomayor’s teaching experience.  Hmmm.

Students who have taken her course at Columbia have raved about her, her willingness to mentor them, push them, and take them seriously.  Here are excerpts from student evaluations of her course:

- Judge Sotomayor is extremely accomplished, interesting and knowledgeable.  She is one of the top judges at the 2nd Circuit, and to get to sit in a class with her and just a handful of students is an incredible experience.

- Judge Sotomayor is an amazing judge, and person, and I feel privileged to have had a chance to learn from her.

- Judge Sotomayor is clearly brilliant and it’s great to be in class with her. She is really exceptional. It is interesting to hear the principles she applies to appellate adjudication. This was the best class I have taken at Columbia.

- As a student of the law, I found Judge Sotomayor’s lectures to be very interesting–she can offer a viewpoint of the law from the perspective of a prosecutor, a private litigator, a district court judge, and an appellate court judge.

- Judge Sotomayor really seems to enjoys teaching this class—and mentoring young lawyers generally—and it shows in her enthusiasm and preparation. This class is one of the great privileges of Columbia law school.

Columbia’s Dean for Social Justice Programs, Ellen Chapnick, was on CNN this morning talking about Judge Sotomayor as a friend and colleague, link here.

The Supreme Court has been busy this week thinking about dirty language and pictures. In two cases, they affirmed efforts to censor speech about matters sexual or profane. One case involved an FCC fine levied on CBS for Janet Jackson’s now well-known “wardrobe malfunction” during the Super Bowl halftime show in which a part of her body was exposed on live national TV. The other case dealt with the FCC’s “fleeting expletive” policy that threatened fines against television broadcasters should they air accidental “fleeting” expletives. The controversy arose in March 2003 when U2 lead singer Bono uttered the “f-word” during a broadcast of the Golden Globe Awards.

These two cases raise interesting issues for those of us interested in gender and sexuality law. What should count as “indecent” or “profane” for the purposes of risking FCC censorship and fines? Why is Janet Jackson’s anatomy any different from the anatomy of native women frequently broadcast on public television shows? Worse, we were watching the first season of “The Wire” on Netflix last weekend and in one early episode the detectives showed over and over and over a photograph of a naked African American woman who had been shot in the chest. After the fourth or fifth time, we screamed at the TV – “stop showing that photograph!!” It was necrophiliatic voyeurism – but didn’t overstep the FCC’s rules because it was on HBO.

But I raise these issues now, not to offer a trenchant analysis of the concepts of indecency and the First Amendment, but for another purpose having to do with what it means to write about them on a blog. Anyone who knows me and my writing will notice that I am not one to avoid the fully spelled out versions of the “F- or S- words”, or to refer to the upper part of a woman’s body as her “chest” or “anatomy” as I have above.

Google and other search engines have made me censor myself – or at least have made me aware of some of my readers whom I didn’t intend to reach. When I write on this blog, as I have in the past, using terms that refer specifically to women’s body parts, to sexual harassment, to rape, to sex trafficking, even to particular sex acts that come up in cases or in real life, I get lots of hits from people searching the internet for those terms. They aren’t looking for our thoughtful analysis of gender and sexuality law emanating from Columbia Law School. No, they just want to get off.

For instance, on December 4th I wrote about a case that had just been argued in the Supreme Court having to do with Title IX, the federal law prohibiting sex discrimination by recipients of federal funds.

The facts had to do with the sexual harassment of a girl by other children on the school bus – and I described the facts in the blog post. My “usage statistics,” as we call them in the blogosphere, went WAY up – tons of people found their way to the blog to read about this important new case in the Supreme Court. Well, not quite. Actually, what I got were lots of pervs who put search terms in google and other search engines and ended up at my blog. Call me naive, but I was shocked. By the time the Court issued its opinion a month later, I wrote a very sanitized post – directing readers to the opinion, rather than recharacterizing its facts and drawing a skeevy unintended audience who were more interested in girls and school buses than Title IX.

Writing for a blog is an interesting, and at times strange, experience – I know more about my blog readers than I possibly could when I publish in a law review or scholarly journal. But I find myself now quite self-conscious about what words I use in the posts, and censor myself in ways I wouldn’t in a law review (though I had a terrible fight with an editor at the Columbia Law Review several years back about my refusal to capitalize the word “god,” and have had other tussles with law review editors about other words they thought profane – but which I won’t repeat here because I have my perv-filter up!). There are “bots” that scan every blog post and post hundreds of comments that are really just ads for pornography (there is a filter that keeps out most of them, but now having used the “p-word” I’m in trouble), and then I get no small number of searches that end up at my blog that are really trying to figure out the sexual orientation of my colleagues like this: “Is so and so gay?”

But this is the quandry – as someone who is sex-positive, writes about “Theorizing Yes,” and queer theory more generally, I have found I have installed a little censor who sits on my shoulder when I write, imagining the creeps who will end up at the blog if I use this term or that phrase. So I choose sometimes rather convoluted ways of saying things to confound the search engines. Hopefully I don’t sacrifice content – but there is a degree to which one’s blog posts risk becoming the props of pervs. In my earlier published writing I’ve intended to meld titillation with scholarly inquiry, such as my first academic article which was a review of Madonna’s book Sex. But that’s not my aim in this forum.

But then, in the immediate aftermath of Eve Sedgwick’s passing, it is particularly problematic to insist on such a distinction – between that which is intended for enjoyment or consumption by the body vs. that by the mind. There is, to be sure, an erotics of scholarship that cannot be denied. And, just as I want to control what “is” erotic and what “isn’t,” I want to control the kind of pleasure my readers get from reading these posts.

This is the same fool’s errand that the Supreme Court has been on in its recent cases parsing the indecent (Janet Jackson’s exposed breast at the Super Bowl) from the sacred (the Ten Commandments displayed on public property), and the profane (Bono’s language at the Golden Globes) from the holy (campaign contributions as deomocratic speech).

We learned late last week that David Souter plans to step down from the Supreme Court at the end of this term. Nominated by President George H. W. Bush in July of 1990 on the expectation that he would be a dependable conservative vote on the Court, Justice Souter has instead marked his time on the Supreme Court as a reliable member of the Court’s left. Not only has his judicial ideology departed from that which was expected of him, but the Court’s center has shifted markedly to the right, making his rather moderate views seem “left-ish” in comparison. Rumors of Justice Souter’s resignation set off the usual parlor games among bloggers and law professors alike. Rather than weigh in on who I think is likely to replace Justice Souter, a little back story on his nomination in 1990 may put the current nominatory climate into some perspective. In the intervening almost 20 years since David Souter was nominated to the U.S. Supreme Court by President Bush the First, much has changed. Let’s hope that the issue of the nominee’s personal life is one of them.

In July of 1990, President Bush nominated David Souter to fill William Brennan’s seat on the U.S. Supreme Court. At the time, I was the Executive Director of the National Lawyers Guild – the national association of progressive lawyers and legal workers. It fell to us and the rest of the “critical left” to formulate an opinion about the Souter nomination and, most likely, to oppose it – he was, after all, being nominated by a republican President.

The NLG played a key role in the meetings that were immediately convened in Washington to discuss strategy. Of the national organizations that attended these gatherings – the ACLU, the Alliance for Justice, People for the American Way, the Center for Constitutional Rights, NOW, etc. – the Guild was the only membership organization that had lawyers in New Hampshire who knew Souter and his reputation. Everyone else was, “who?” We worked up a briefing paper for the first meeting, and the only “dirt” we could find on him was his aggressive prosecution when he was the New Hampshire Attorney General of a couple of hippies who had covered up with tape the “Live Free Or Die” slogan on the license plates on their van because they disagreed with the state’s motto. Otherwise, our New Hampshire members told us that he was a very quiet, ascetic man who had never married and preferred books to people.

When we began to discuss possible strategies for derailing the nomination – of course we had to since Bush had nominated him – the Executive Director of one of the aforementioned organizations declared: “Maybe he’s gay, we can use that on him.” The confirmation fight of Robert Bork was still fresh in our minds – having occurred only 3 years earlier – so why not “Bork him” with homosexuality?

Pat Maher, who was then the Executive Director of the Center for Constitutional Rights, looked over at me and we exchanged the “are you going to take this one, or should I?”-look. I stood up and made clear that “queer-baiting” the nominee was not an acceptable strategy. There was some “why not?” kind of push back we got from several people at the meeting – “maybe we could just float the suggestion informally, and let it circulate for others to pick up and run with?” suggested one person. “We have so little to work with.” After all, “outing” as a political tactic used by gay people against closeted gay people had just started to get public attention. Six months earlier, gay activists had “outed” Mark Hatfield, a Republican United States Senator from Oregon, because he supported legislation initiated by Jesse Helms. In March of 1990, recently deceased Malcolm Forbes was outed by Michelangelo Signorile. Why not David Souter too?

Pat and I took turns answering the homophobic suggestions that we exploit the suggestion of Souter’s presumed gay-ness, turning back the creative ways we could “out him” as a way to undermine his viability as a member of the Supreme Court. We had no actual evidence that Souter was gay, rather he was an unmarried adult man who at the time still lived with his mother. He had not taken public positions that were anti-gay or was otherwise duplicitous in his public and private life – as was Hatfield and today’s Larry Craig. Merely outing him, or suggesting that he might be gay, was capitalizing on the homophobia otherwise circulating in society and Washington. Not acceptable.

Pat and I won the day – we didn’t go with the “outing” strategy – instead we opted for the “stealth nominee” idea (we coined the term).

Obama’s short list, or at least the one circulating in the parlors of law schools and Washington, contains several candidates with private lives like Souter’s: neither Elena Kagen nor Janet Napolitano have been married. But get this: Kathleen Sullivan, former dean of the Stanford Law School and Pam Karlan a law professor also at Stanford, both often mentioned for the Court, are actually out lesbians. You can be sure that the republican members of Congress and the advocacy groups lining up to oppose any Obama appointee are strategizing how to raise the “gay” issue with Kagen, Napolitano and Sullivan (the conservative blogosphere is already well down that road). 2009 isn’t 1990 – and the mere suggestion of homosexuality doesn’t have the same unseemly undermining effect that it did back then. But it ain’t nothing – like not paying your taxes seems to be now. (Remember Zoe Baird?).

So when queer-baiting these nominees is inevitably suggested let’s hope there’s someone in the room who stands up and urges a different tactic. Just as some Republicans have come to appreciate how their opposition to same sex marriage may be hurting the party, or so says the New York Times, queer-baiting Supreme Court nominees may be counterproductive for them as well – more so today than it was 20 years ago when David Souter’s name, and life, came before the Senate Judiciary Committee.