From a U.S. Law Week article that discusses U.S. Court of Appeals for the 7th Circuit Judge Diane Sykes, a rumored short-short-lister for the Supreme Court nomination:
Senator, I know you and your colleagues have been debating the Employment Non-Discrimination Act, which would ban sexual-orientation discrimination in employment. If you enact it, I will of course gladly apply it. I just think that Congress hasn’t enacted such a ban yet. I think that, when your predecessors banned sex discrimination 50 years ago, discrimination based on sex was understood to mean discrimination against women or against men, not discrimination based on sexual orientation.
And if, for reasons of judicial ethics, Sykes can’t say this (for instance, because the case will still be pending, either in the 7th Circuit or on a cert. petition before the Supreme Court), I’m pretty sure the other senators can.
Now this may not be an “A” answer on a law school paper; I know there are all sorts of plausible arguments on both sides of this question, and a thorough scholarly answer — or even a thorough lawyerly answer in a brief or in an opinion — would have to go through a lot more. But for a confirmation hearing, I’d think that the answer I outlined would be pretty appealing both to the public and to many senators. Or am I missing something here?