hunter of justice

Congratulations Justice Robinson

Beth Robinson, whose argument to the Vermont Supreme Court in Baker v. State produced the ruling that exclusion of same-sex couples from marriage was unconstitutional under that state's constitution, was sworn in yesterday as a Justice of the same court. Since handling Baker, which ultimately resulted in the state legislature enacting a civil union law, Robinson had continued to practice law and advocate for lgbt rights. Most recently, she served as counsel to Governor Peter Shumlin, who appointed her to the court.

There are now six openly lgbt justices of state supreme courts: Rives Kistler and Virginia Linder in Oregon, Barbara Lenk in Massachusetts, Sabrina McKenna in Hawaii and Monica Marquez in Colorado, in addition to Robinson. Half of the six - Lenk, McKenna, and Robinson - were appointed during 2011.

LGBT cases before 11th Circuit draw majority liberal panel of judges

Judges Rosemary Barkett, Phyllis Kravitch, and William Pryor will decide two lgbt-related cases to be argued this week before the 11th Circuit Court of Appeals. Barkett and Kravitch (who is on senior status) are two of the liberal members of what is usually a conservative circuit; they were appointed by Presidents Clinton and Carter, respectively. Pryor, considered to be a strong conservative, was appointed by President George W. Bush.

On Thursday, they will hear arguments by the Georgia legislature that its firing of a transgender employee did not constitute sex discrimination. This will follow tomorrow's appeal by a self-proclaimed Christian who was ordered by Augusta State University either to provide non-judgmental counseling to gay clients or participate in a remediation plan. Lambda Legal attorney Greg Nevins (photo) will seek affirmance of the lower court decision in Glenn v. Brumby, the trans case, which granted judgment for the plaintiff. In the other case, the former ASU graduate student is being represented by the Alliance Defense Fund, which makes regular appearances on the opposite side of lgbt rights advocates.

The panel before whom they will argue presents a study in contrasts.

Judge Barkett is well known for her spirited arguments in dissent in both the panel decision and the denial of an en banc rehearing in Lofton v. Department of Children's Services, a challenge to the Florida law that prohibited adoption by lesbians and gay men. Barkett argued that the anti-gay adoption rule was unconstitutional if one followed the Supreme Court's decisions in Lawrence v. Texas and Romer v. Evans. (Florida has since abandoned its defense of the law.)

Judge Kravitch was a trailblazer for women in the judiciary. Only the third woman ever appointed to a U.S. Court of Appeals, she received the ABA's Margaret Brent Woman Lawyer of Achievement Award and an award for service to the profession from her alma mater, the University of Pennsylvania Law School. She began her career by joining her father's practice in Savannah, when no major firms would hire a woman. She later litigated important local civil rights cases.

Judge Pryor became Attorney General of Alabama in 1997 and served until he joined the 11th Circuit. Although nominated in 2003, Senate Democrats filibustered his appointment until President George W. Bush gave him a recess appointment in 2004. The Senate confirmed him the following year as part of a compromise on judicial appointments reached by the "Gang of 14." During his confirmation hearing, he reaffirmed his belief that Roe v. Wade was "the worst abomination of constitutional law in our history." 

Although these three judges will announce the first decision in the two cases, it might not be the last. A decision from the panel in any U.S. Court of Appeals case may be rescinded if the full Circuit grants a rehearing en banc.  The case is then re-argued before all the judges who are members of that Circuit.

Congratulations to Judge Oetken

Paul Oetken will become a member of the same court - the Southern District of New York - where Judge Deborah Batts, the first openly lesbian federal judge, sits.  Judge Batts was appointed by President Clinton in 1994; at that time, her sexual orientation was not known to the public. President Clinton also appointed openly lesbian Judge Emily Hewitt to the U.S. Court of Claims in 1998. Since those appointments, there has been no other openly gay person confirmed for a federal judgeship until now. From Politico:

The Senate on Monday voted 80-13 to confirm Paul Oetken, making him the first openly gay male federal judge.

Oetken, a former Justice Department attorney and White House associate counsel during the Clinton administration, will serve on the Federal District Court for the Southern District of New York.

Twenty-seven Republicans, including conservative Sens. Jeff Sessions (R-Ala.), John Cornyn (R-Texas and Tom Coburn (R- Okla.), joined all Democrats in voting aye. All 13 no votes were cast by Republicans: Roy Blunt (Mo.), John Boozman (Ark.), Thad Cochran (Miss.), Mike Crapo (Idaho), Jim DeMint (S.C.), Orrin Hatch (Utah), Kay Bailey Hutchison (Texas), Mike Lee (Utah), Mitch McConnell (Ky.), Jerry Moran (Kansas), Jim Risch (Idaho), Pat Roberts (Kansas) and Roger Wicker (Miss.).

Oetken’s nomination cleared the Senate Judiciary Committee in April with no opposition, but it had been stalled on the Senate calendar for three months. More than 20 of President Barack Obama’s judicial nominees are pending before the Senate, including 17 who received unanimous approval in committee.

Quiz: Which is more terrifying, the Iowa Supreme Court or this ad?

 

And what's even scarier is that the Des Moines Register reports that polls show a tie between supporters and opponents on the retention vote for the three state supreme court judges on the ballot, all of whom joined the ruling that gay couples must be allowed to marry.

See other attacks on judicial independence at Slate.  HT: Doug Nejaime.

Latina lesbian to become Justice on Colorado Supreme Court

Colorado Governor Bill Ritter has appointed Deputy  State Attorney General Monica Marquez to serve as a justice on the state supreme court. Marquez, 41, becomes only the third openly gay judge on any state supreme court, joining Oregon Supreme Court Justices Virginia Linder and Rives Kistler.

Marquez currently is the head of the state services section of the AG's office. She got her undergrad degree from Stanford and her law degree from Yale. She clerked for U.S. District Judge Michael Ponsor in Massachusetts and 10th Circuit Judge David Ebel, and then worked at a private firm. Her appointment to the court becomes effective November 30.

Marquez is a past-president of the Colorado Gay Lesbian Bisexual and Transgender Bar Association and a board member of the Colorado Hispanic Bar Association. She is also the daughter of former Colorado Court of Appeals Judge Jose D.L. Marquez, the first Latino to serve on that court.

SF Bar Ass'n defends Judge Walker, opposes reporting of only gay sex/o

By SF Bar Assn President Arturo J. Gonzalez in the LA Times:

I write on behalf of the Bar Assn. of San Francisco, a legal professional membership organization with 8,000 members that works to elevate the standards of integrity, honor and respect in the practice of law.

I disagree with Times Assistant Managing Editor David Lauter's claim that the sexual orientation of Northern District of California Chief Judge Vaughn Walker is relevant to the paper's reporting on the federal Proposition 8 case Walker adjudicated. Lauter states that judges "bring the totality of their life experience to the cases on which they rule. As a result, certain aspects of their humanity are relevant to note in news stories." Yet Lauter acknowledges that if the judge deciding the case was heterosexual, The Times probably would not have reported it.

This is a double standard that undermines our judicial system and legitimizes a presumption that a gay judge's sexual orientation makes his or her decisions suspect in a case regarding same-sex equal rights when no such presumption exists for heterosexual judges.

Indeed, if this "totality of life experience" were so relevant to The Times, why did it not report on the sexual orientation of the heterosexual trial court judge who originally struck down the same-sex marriage ban in 2005, finding that it violated the California Constitution prior to its amending by Proposition 8? Why did The Times not report on the sexual orientation of each California Supreme Court justice who handled the same-sex marriage cases on appeal? Was it not newsworthy to The Times under its "totality of life experience" standard that the four justices in the Supreme Court's majority recognizing same-sex marriages in 2008 are heterosexual? Is sexual orientation only newsworthy when a gay judge presides over a case involving lesbian or gay citizens?

Of course, now that The Times has articulated this new standard of relevance, it should at least walk the talk and apply it fairly to all judges. Even if it wanted to eliminate this double standard by applying Lauter's "certain aspects of their humanity" benchmark just to all judges hearing the appeals, however, it would be a formidable undertaking. Such reporting would require accurate disclosure of each judge's sexual orientation, marital status, religious background and beliefs, biological relationship to his or her children, and perhaps other factors. Even if such information could be obtained, it should be evident that such characteristics, by themselves, are irrelevant to an individual's ability to be fair and impartial and are not the legitimate subjects of news coverage. The same filter should have been applied here.

Walker has a long and illustrious record as a jurist. Nothing in his career or in his handling of the Proposition 8 case reflects that he has not fairly and objectively reviewed the facts and reached decisions based solely on the established law.

I object to The Times' reporting beyond the facts and legal analysis of the case to inject irrelevant and potentially inflammatory information about the personal characteristics of a judge. Doing so reflects a misguided presumption of heterosexual normativity that undermines the public's confidence in the rule of law based on biased assumptions about the impartiality of anyone without a heterosexual sexual orientation.

Nominee to be new chief justice of CA Supreme Court officiated at gay wedding

From the L A Times:

Justice Tani Cantil-Sakauye moved one step closer Wednesday to becoming the first minority California chief justice, winning unanimous confirmation by a state commission. The three-member Commission on Judicial Appointments heard nearly two hours of testimony before approving Gov. Arnold Schwarzenegger's nominee to head the state's $3.5-billion court system and the California Supreme Court...

If approved by voters on the November ballot, Cantil-Sakauye would be the court's first Filipina and only the second female chief justice [in California history]. Her selection also would give the state high court its first female majority.

Cantil-Sakauye, 50, is a former prosecutor who worked on legal affairs and legislative matters for former Gov. George Deukmejian and moved up the ranks from Municipal Court judge to the state Court of Appeal in Sacramento. She is a moderate Republican who presided over the marriage of a same-sex couple during the six months in 2008 when state law permitted gay marriage.

During Wednesday's hearing, a prosecutor told the commission about trying a murder case before Cantil-Sakauye in Sacramento County Superior Court in 2002. After sentencing the defendant to life in prison, Cantil-Sakauye walked down from the bench, held the hand of the crime victim's mother and told her how sorry she was for her son's death, according to Anne Marie Schubert, the prosecutor in the case and now Sacramento's supervising deputy district attorney.

Michael Arkelian, who worked as a public defender for 28 years, testified that he did not always agree with Cantil-Sakauye's decisions but described them as "extremely well reasoned" and made with an eye to justice....

Conservative launches campaign against Iowa Supreme Court judges

The candidate who lost the Republican primary for governor of Iowa to a more moderate former governor has announced that he will continue to campaign, not for himself, but against the three Iowa Supreme Court justices who ruled in favor of allowing same-sex couples to marry who are on the November ballot for retention on the court.

Republican Bob Vander Plaats won’t make an independent run for governor but instead will work to unseat three Iowa Supreme Court justices...His main reason is the issue of marriage rights for same-sex couples. “I believe this election to unseat these three justices may be, if not one of the most, the most important campaign and election in our country,” Vander Plaats said. (Des Moines Register)

It's not a surprise that the justices will encounter opposition from conservative voters, but Vander Plaats' involvement means that the effort to unseat them will get a higher profile.

Slow POTUS + Slow Senate = No change in federal courts

If it seems like the federal judiciary is still stuck in the slow mo land of ultra-conservatism, there's a reason (data from the WSJ and Brookings):

Nominations submitted for appeals courts: 

22 by Obama

32 by Bush (at same point in time)

Nominations submitted for district courts: 

63 by Obama

83 by Bush

Confirmed by Senate for Courts of Appeals:

    9 for Obama, 12 for Bush

    (Vacancies when Obama took office: 13)

    (Vacancies when Bush took office: 27)

Confirmed by Senate for District Courts:

    27 for Obama, 51 for Bush

    (Vacancies when Obama took office: 41)

    (Vacancies when Bush took office: 54)

Total confirmations:

    36 for Obama, 63 for Bush

(At the same point in the Bush administration, the Senate was evenly divided between D's and R's, with VP Cheney holding the tie-breaking vote.)

Iowa judges fear anti-gay attacks in upcoming retention elections

According to this article in the Des Moines Register, judges in Iowa who will have retention votes in November are apprehensive about anti-gay groups targeting them in the campaign. Three of the justices on the Iowa Supreme Court (which unanimously invalidated the exclusion of gay couples from marriage) will be on the ballot, as will the trial court judge who also ruled that the exclusion violated the state's constitution.

Jeffrey Neary, [a] northwest Iowa judge, didn't know how to respond to the newspaper ads, radio spots or "Vote No" pamphlets calling for his removal after he divorced a lesbian couple in 2003. Judicial ethics rules banned campaigning, except to respond to an attack. Direct fundraising was not an option.

Neary survived that campaign against him six years ago, but judges who face retention votes this year are braced for similar political attacks, in response to the Iowa Supreme Court decision that made same-sex marriage legal.

At least one group that tried to impeach a Polk County judge in 2007 over a same-sex marriage ruling is considering an effort this fall to boot judges off the bench. Others who opposed that decision say they will encourage supporters to vote "no" on all judges who appear on the November ballot....

Legal observers predict the Varnum vs. Brien same-sex marriage case will inspire last-minute calls to unseat judges, potentially politicizing the retention votes of jurists who are supposed to remain impartial. The ruling's opponents say that the justices have already injected politics into the court and exceeded their constitutional power.

"I'm not at all hesitant to say I expect attacks," said Rachel Paine Caufield, a Drake University assistant professor who studies judicial selection and retention. "We've seen it in other states, and we've seen that they often come late in the game."

Among those on the ballot this November: Iowa Supreme Court Chief Justice Marsha Ternus, and Associate Justices Michael Streit and David Baker — all part of the seven-member court that last year unanimously overturned the state's decade-old gay marriage ban. Each declined to be interviewed for this article.

Neary, appointed by Gov. Tom Vilsack in 2002, was challenged after he divorced a Sioux City lesbian couple that had formed a civil union in Vermont. Neary later said he did not realize the couple was same-sex, and amended his ruling to say he had only ended a civil union.

The 2003 decision — before gay marriage was legal in Iowa — triggered an outcry from social conservatives and calls by Rep. Steve King, a Republican, to vote Neary off the bench. Neary held his seat with 59 percent support, but that was the narrowest margin of any Iowa judge retained in the past decade, a Des Moines Register review of voting data shows. Judges in that 2004 election were retained with an average of 77 percent support, a figure that has changed little in recent years.

But Neary didn't forget the campaign against him. "I will tell you, honestly, that for two years after my retention election, I thought carefully about how I was going to rule on things," said Neary, who stands for retention again this year. "I don't want to say that I changed rulings, because I don't think I ever did. But you ask yourself: Who's going to care about this decision?"

Judge Robert Hanson said in an interview that he anticipates some effort before the November election to remove him....The Polk County district judge made the initial ruling in the landmark Varnum vs. Brien case, deciding that same-sex couples could not be denied licenses to marry. Iowa's Supreme Court unanimously upheld his decision.

Hanson was appointed by Gov. Tom Vilsack in 2003 and was retained the next year with 79 percent support. But, he said, after the ruling he was contacted by individuals who appeared to believe that the judge himself had initiated the lawsuit.

Political attacks on judges are rare in Iowa, said Dwight James, a Des Moines lawyer who heads an Iowa State Bar Association panel on judicial independence. But, James said, he anticipates attacks this year on the three Supreme Court justices who face retention, and possibly on judges who have performed same-sex marriages. Judges who marry heterosexual couples must also perform marriage ceremonies for gay couples, the Iowa attorney general's office has said....

Judge Walker's non-secret is out

Many California lawyers have told me of rumors that Judge Vaughn Walker, who is hearing Perry v. Schwarzenegger, is gay, but so discreet that there was no substantiation of it. Now the SF Chronicle has published an article discussing this "biggest open secret" of the case. I had worried that the Prop 8 defenders would wait until some critical moment in the litigation - perhaps on appeal - and then pop this news as a basis for undercutting Judge Walker's decision, if it turns out to favor the plaintiffs.

In my view, it's good news that Judge Walker's sexual orientation is now public (even if still not really substantiated). I wonder, in fact, if the plaintiffs' lawyers facilitated the Chronicle's report.  The reporters of course contacted defendants' lawyers for comment, and received this response from Andy Pugno, counsel for the Yes on 8 team:

"We are not going to say anything about that," Pugno said. He was quick to assert, however, that Prop. 8 backers haven't gotten a fair shake from Walker in court. He cited both the judge's order for the campaign to turn over thousands of pages of internal memos to the other side and Walker's decision to allow the trial to be broadcast - both of which were overturned by higher courts.

"In many ways, the sponsors of Prop. 8 have been put at significant disadvantage throughout the case," Pugno said. "Regardless of the reason for it."

I think this press report offers as much inoculation as possible against ad hominem attacks, at least in the formal proceedings. How ugly it will get in the conservative media and blogosphere is anyone's guess.

Lest there be any doubt, the fact that a judge shares a minoritarian status with the plaintiffs in a civil rights case is not a proper basis for recusing the judge. And there's a great 35-year-old decision on point, written by U.S. District Judge Constance Baker Motley, a former NAACP attorney and the first African-American woman federal judge.  It emerged in a Title VII case brought by women challenging the sex discrimination then common at big law firms.  The lawyers for Sullivan and Cromwell sought to disqualify Judge Motley from hearing the case. She wrote:

Defendant further seeks my disqualification on the ground that I “strongly identified with those who suffered discrimination in employment because of sex or race”, and offers as support for this “identification” an eloquent quote, attributed to me, on the crippling effects of discrimination. …

It is beyond dispute that for much of my legal career I worked on behalf of blacks who suffered race discrimination. I am a woman, and before being elevated to the bench, was a woman lawyer. These obvious facts, however, clearly do not, ipso facto, indicate or even suggest the personal bias or prejudice required by [the recusal statute]. The assertion, without more, that a judge who engaged in civil rights litigation and who happens to be of the same sex as a plaintiff in a suit alleging sex discrimination on the part of a law firm, is, therefore, so biased that he or she could not hear the case, comes nowhere near the standards required for recusal. Indeed, if background or sex or race of each judge were, by definition, sufficient grounds for removal, no judge on this court could hear this case, or many others, by virtue of the fact that all of them were attorneys, of a sex…

Nowhere in their affidavits do defense counsel or defendant indicate that I have any relationship or personal association or interest in this litigation. They merely point to my general background and the obvious facts of my race and sex as evidence of extrajudicial prejudice. … [N]one of the facts included in the affidavits … are sufficient, under the statutes, for disqualification. Defendant's motion for disqualification is, therefore, denied.

Blank v. Sullivan and Cromwell, 418 F. Supp. 1, 4-5 (S.D.N.Y. 1976)

Sotomayor unleashed

The current issue of Latina magazine contains a feature on the personal side of Justice Sotomayor, written by a good friend, Sandra Guzman. The magazine has posted excerpts on its web page, including the following:

One evening this past spring, as we prepared dinner for a group of friends, I asked her for some advice. She listened closely as I relayed my marital problems. I still recall her words, which I carry in my heart to this day. She told me that we have been wrongfully taught the Cinderella fairy tale as a paradigm of what happy relationships are supposed to be. And when we fall short of that, we suffer for it. To find happiness in love, she said, we have to make up our own rules. It’s not easy, but it’s doable. The process may involve unlearning what we have been taught and then figuring out what makes us happy. There are all types of relationships and arrangements to choose from. Of course, the trick is finding a companion who shares those values.

Love is not the only area where Justice Sotomayor has faced her fears and worked her way through them. Even as recently as April, she had doubts about her potential rise to the Supreme Court. She had been on President Clinton’s Supreme Court short list, but no seats became vacant. When Obama won the White House, the legal world hedged their bets on the brilliant judge with the impeccable résumé. But weeks before Obama made public his pick to replace Souter, Sotomayor called her confidante and good friend [NY attorney Lee] Llambelis, telling her that she wanted to pull her name from consideration.

“You have to understand that Sonia is a very private person,” Llambelis explains. “She didn’t want to go through another public vetting process and a potential public dressing-down by those on the Republican right who opposed her nomination. Sonia was happy being a Federal Appeals judge, loved her life in New York and felt fulfilled. She worried about having less time to spend with her mother, family and friends, particularly given her mom’s age and potential health complications.” Llambelis recalls listening to her friend, whose “I can” mantra was being drowned out by last-minute uncertainty. She told her to think beyond herself. “At this point, this is not about you,” Llambelis said to her. “It’s about little girls and boys, brown and black, who live in the projects and in poor communities around our nation, who can dream bigger if you are in the Supreme Court. You cannot back down now.” Sotomayor promised to think about it overnight. And in the morning, she woke up with a lighter heart and a bigger purpose.

In her short tenure so far on the court, the justice we have witnessed is no shrinking violet. She asks tough questions and is not intimidated by her rookie status. Sotomayor’s charm and confidence surprise very few people who know her, including the man who nominated her. While President Obama’s staff was preparing Sotomayor for the confirmation hearings in a White House office called the War Room, the team covered all the potentially explosive questions and briefed her on every minute detail, including how to dress for the cameras. They even advised her to keep her nails a neutral shade, which she did. But on the day of the White House reception celebrating her appointment, Sotomayor asked the president to look at her freshly manicured nails, holding up her hands to show off her favorite fire engine–red hue. The president chuckled, saying that she had been warned against that color.

She sure had, but Sotomayor was not finished. She then pulled her hair back behind her ears, exposing her red and black semi-hoop earrings, a beloved accessory among Latinas across America—from the South Bronx to Houston to East Los Angeles.

Obama joked that she had been briefed on the size of the earrings as well. Without skipping a beat, Sotomayor replied: “Mr. President, you have no idea what you’ve unleashed.” He responded, “Justice: I know and remember it’s a lifetime appointment. And I and no one can take it back.” And that, as they say, is the final verdict.

Congrats to pathbreaking judges and law school deans

New York Governor David Paterson has named the first openly gay lawyers to serve on the state's intermediate appellate court. Judge Roz Richter, now on the supreme court (what the trial level court is called in New York), will join the bench for the 1st Appellate Department, which includes Manhattan.  Roz has been a trial court or administrative judge for more than 20 years. In the early 1980s, she was the first executive director of Lambda Legal.

Governor Paterson's other openly gay appointment is Elizabeth Garry, a supreme court judge upstate. She will serve on the court for the 3d Appellate Department, which includes Albany.

On the law school deaning front, Bill Adams will become (insofar as I know) the only (and the first?) openly gay male law school dean in the U.S. when he takes the helm at Western State University Law School. He will join openly lesbian deans Joan Howarth (Michigan State), Toni Massaro (Arizona) and Kellye Testy (Seattle). (In our neighbor to the north, former University of Houston professor Mary Ann Bobinski is now dean of the law school at the University of British Columbia.)

Bravo to all!

Starr drops hints on Prop 8 argument, forecasts filibuster for Supreme Court nominees

At the annual conference of the J Reuben Clark Society, an association of Mormon attorneys, Pepperdine Law Dean and former inquisitor Kenneth Starr dropped a few hints about his upcoming oral argument in defense of Prop 8, and also forecast rough sailing for any Obama nominees to the Supreme Court. According to the Mormon Times,

Starr told the audience he would not speak in depth publicly about his scheduled March 5 appearance before the California Supreme Court, where he will argue in favor of upholding a ban on same-sex marriage approved by voters under Proposition 8.

"I'm not going to be talking about that," he said. "One of my precepts is never argue outside the courtroom, on the courthouse steps, so to speak, your case. At the same time, I recognize how important the issue is, so a compromise that occurred to me is simply to share with you several sentences, briefly, from two sources of law."

Starr then read from prior opinions of the California Supreme Court on the limits of public officials' ability to execute their public duties as well as a passage from the California state constitution stating that only marriage between a man and a woman is legally valid.

That was pretty opaque, but Starr apparently spared few words on the prospect of Republican payback over confirmations:

Starr said Obama may have occasion to appoint two or more justices to the high court, and because he actively opposed nominees from former President George W. Bush while Obama was the junior senator from Illinois, Senate Republicans just might return the favor. Starr reminded attendees of the J. Reuben Clark Law Society conference that Obama supported a filibuster against Justice Samuel Alito and voted against John Roberts, now Supreme Court chief justice.

"It is the era of President Obama; it is also the era of the Roberts court, two very able lawyers," said Starr. However, Starr pointed out, "the salience of this very enviable position, politically, for our president is brought home by the president's own approach to the high court during his years of service as a United States senator." He continued, "There is one historical factoid of note: He is the first president of the United States ever in our history to have participated in a Senate filibuster of a judicial nominee. Never before has that happened."

Starr cited a November article in The Washington Times about the problems Obama faces, quoting, "Senate Republicans say the president-elect's voting record and long simmering resentments over Democrats' treatment of President Bush's nominees will leave Mr. Obama hard-pressed to call for bipartisan help confirming judges or even an up-or-down vote."

Of course, if the good folks of Minnesota ever stop counting and recounting and recounting their votes from November (can we airlift in some calculators?) and finally send Al Franken to the Senate, the Dems will be only one short of a party-line vote getting to 60. So at least for the next two years, my hunch is that Obama judicial nominees will be pretty safe, assuming that they don't have any employees or tax liens that have slipped their minds.

Gay dissenter retires from Australian high court

Openly gay Justice Michael Kirby retired Monday from the High Court of Australia after 13 years of servie, often in dissent, and five weeks short of his 70th birthday when retirement from Australia's highest court is mandatory.

From Australia's Herald Sun with HT to UK Gay News:

It's unlikely the court will see another quite like him - a judge who is a public intellectual and publicist for the law, a judicial activist and defender of human rights, a gay man with a 40-year relationship, an Anglican monarchist.
Almost all his life he's been a boundlessly energetic reader, writer, speaker and all round engager in public issues - starting with Sydney University where, on his way to four degrees, he was president of the Student Representative Council and the university union.
His biographer, A J Brown of Griffith University, says he was heavily influenced at university by Julius Stone, who believed the law should be put into its social and economic contexts. By the late 1960s he was active in the NSW Council of Civil Liberties.
In 1975 Kirby was appointed a deputy president of the Conciliation and Arbitration Commission and first chair of the new Australian Law Reform Commission. Brown says he could have made the new body a technical forum where lawyers talked about lawyers' problems.Instead, with his flair for publicity, he gave it a high profile as an agency engaged in the intersection of the law with the issues of the day. An example was its work on privacy, which became the basis of the public sector's privacy regime and was later expanded to private companies.
After a brief stint on the federal Court, he became president of the NSW Court of Appeal in 1984. Kirby nailed his colours to the mast early by finding, in the Osmond case, that citizens have a common law right to be given reasons for government decisions affecting them. It was a classic piece of judicial activism that was overturned by the High Court. He also made the court more collegial with innovations like breakfasts where he plied his fellow judges with raisin toast.
He never found such congeniality on the High Court, to which the Keating government, shortly before its defeat, appointed him in February 1996. Over the following years he became the court's best known figure, mainly because of his dissents and his innumerable speeches - over his career more than 2,000 published and no-one knows how many others.
Director of the Gilbert+Tobin Centre for Public Law at the University of NSW Andrew Lynch says Kirby's overall dissent rate was about 33 per cent, and up to 50 per cent in some years. Lynch says Kirby's defining methodology was that of an internationalist who refused to see Australian law in isolation from overseas ideas, particularly in relation to human rights. Brown says Kirby is regarded as much less radical in Europe than Australia.
Kirby himself has said he's inspired by a love of fellow human beings and a duty to do, within the law, what he can to prevent the pain and misery that injustice can cause.
In 2004 alone, his dissents included attempts to limit: - The power of federal authorities to detain indefinitely a stateless person who couldn't return to his own country; -  the power of federal officials potentially to expel many British subjects as aliens;-  the power of state parliaments to engage judges in the indefinite detention of prisoners who have completed their jail sentences; and - the expansion of the powers of military tribunals over civilian-type offences.
Kirby's sexuality - though he only made his long partnership with Johan van Vloten public in 1999 - was one of the wellsprings of his human rights concerns. One of his worst moments came when Liberal senator Bill Heffernan used parliamentary privilege to accuse Kirby of misusing his commonwealth car entitlements and of kerb crawling for under-age male prostitutes. Heffernan's evidence was forged and he had to apologise. Kirby accepted it gracefully. As ever, whatever the provocation or dispute, he was courteous.
Kirby's extra-judicial activities were legion. They included president of the International Commission of Jurists, UN Special Representative in Cambodia, member of the ethics committee of the Human Genome Organisation, and a member of expert international panels on AIDS, privacy and data security.