GAY RIGHTS AND JUDICIAL APPOINTMENTS

In an e-mail sent to the Law and Courts discussion list (reacting to this NYT editorial criticizing Bill Pryor and Claude Allen), Dan Pinello (Gov't, John Jay) writes the following, which I assume is fair game here:

The policy preferences of the President's nominees are consistent with those of his Republican predecessors. My research [. . .] on appellate court treatment of gay rights claims from 1981 to 2000 reveals that, among 45 federal cases not influenced by controlling precedent, only 26.7 percent of 116 votes by judges nominated by Republican presidents were favorable to lesbians and gay men, while 60.2 percent of 83 votes by Democratic appointees supported homosexuals -- a difference of 125 percent.

The details of the research are important of course: how are cases where there is no influence of controlling precedent selected? But the important point is that judges nominated by Republicans are less friendly to gay rights than judges nominated by Democrats. I find it exceedingly hard to believe that either side on this issue is clearly right, all things considered, as a matter of statutory and constitutional interpretation. I prefer those positions that are more friendly toward gay rights, because they seem to me to be closer to defensible accounts of human flourishing (among other things). Would I be a non-virtuous judge if I refused to find at the end of my chain of argument that the rights of gays and lesbians were primarily a matter of legislative grace and that the controversial use of judicial power is too precious a resource to spend on this issue? Again, details are important; the general question is still intelligible.