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Being a gay judge no longer ‘a negative,’ jurist says

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  • “The powers that be are looking to diversify the bench,” says the Hawaii high court justice.

Three of the seven openly gay or lesbian justices on the nation’s state supreme courts, and the first lesbian jurist on the San Francisco Bay Area’s federal bench, got together in San Francisco recently and agreed that being a gay judge isn’t much of an issue these days. At least not where they live.

Twenty years ago, when Sabrina McKenna was appointed as a trial court judge in Hawaii, "I was worried about my sexuality being a negative issue," the 55-year-old justice said during a panel sponsored by the Asian American Bar Association.

"I don’t think it’s a negative anymore," said McKenna, who was appointed to the Hawaii Supreme Court in February 2011. "The powers that be are looking to diversify the bench."

Rives Kistler said "nobody blinked an eye" when he was appointed to Oregon’s Court of Appeals in 1999. But there was a short-lived backlash when Democratic Gov. Ted Kulongoski, Kistler’s former boss as state attorney general, named him to Oregon’s Supreme Court in 2003, making him the first openly gay jurist on any state’s high court.

Also in 2010, U.S. District Court judges in San Francisco appointed Donna Ryu, a civil rights attorney and University of California at Hastings law professor, as a federal magistrate. No openly gay or lesbian judicial officer had ever served on the court.

California’s voters had banned same-sex marriage less than two years earlier, but this was San Francisco, the climate was changing, and Ryu was determined to be as open as possible.

"I wanted people to know that I was lesbian," she said. In the January 2010 news release announcing her appointment, she said, she proposed including her membership on the board of the National Center for Lesbian Rights — only to be told by a clerk that the court’s chief judge, Vaughn Walker, was "wondering whether you really want to have that in there."

Ryu agreed to delete the reference, and instead, the release mentioned her female "partner," a local attorney. Nonetheless, it doesn’t appear to have generated a single news story.

President Barack Obama has appointed six gays or lesbians to the nation’s federal courts. California Gov. Jerry Brown, who in his first term in the 1970s appointed the nation’s first openly gay and lesbian judges, named a top legal adviser, James Humes, to a state appeals court in San Francisco last November, making him California’s first openly gay appellate justice.

Does it make a difference in judicial decisions?

"That’s a dangerous question," Ryu said, recalling the controversy over Supreme Court Justice Sonia Soto­mayor’s comments about the possible advantages of having a "wise Latina" on the bench. "I think you bring to it who you are."

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