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May 11, 2010

Hmmmmm... Elena Kagan?

Honestly, I have an opinion about Elena Kagan's pending appointment to the Supreme Court, but not on her sexuality, that's her business not mine.

I really liked that when she ran the Harvard Law School, she banned military recruiters from campus over "Don't Ask, Don't Tell," but I don't know that that qualifies her in my view. I also take the view that barring real unfitness for office, the president has a right to put his own picks on the High Court. I believed that under (GW, ewww), and I believe that under Obama. I suppose I'll have to read the coverage in the days to come to see if Kagan really strikes me as suitable for the High Court.

The question of her homosexuality, whether she is or isn't gay, and whether or not it matters, has been fiercely argued on the blogosphere in recent days. A Cornell law professor says that Kagan has clearly indicated she believes gay marriage is a political question, not a constititutional one (i.e., there is no constitutional right to gay marriage), but Maggie Gallagher says that's not so (and she cites the Human Rights Campaign, a gay-rights lobby, as agreeing with her that Kagan supports marriage equality). Ed Whelan notes that Kagan issues a slippery "clarification" of her stance on whether or not gay marriage is constitutionally permissible. I do believe that whichever side of this question one is on, it's a serious issue, and certainly fair (and necessary) to bring up in Kagan's confirmation hearings (sorry, but without the opposition asking, what's the point in hearings?).

But is the question of whether or not she is herself a lesbian fair, or significant? I'm thinking at this point that it is not. I don't believe a person's sexual orientation guides their legal philosophy, or should guide it, though if Kagan believes otherwise, we need to know that. If she's a smart, capable, wise legal scholar who gives all indications of being a good jurist, why do any of us need to know whom she goes to bed with? What I can't make sense of is Andrew Sullivan's apparent position, which has taken shape over a number of posts. If I'm reading him correctly, Sullivan is saying, re: Kagan, that being gay is nothing to be ashamed of, and the White House ought to trumpet Kagan's homosexuality, if indeed she is gay... but to use her homosexuality to criticize her nomination is part of a right-wing "smear" campaign.

Well, no, you can't have it both ways. If she's gay, and her sexuality is relevant to her nomination, then you have to allow people to take whatever position they like on it. You can't say that it's improper to discuss her sexuality if negative conclusions are to be drawn from it. Although I suppose what Sullivan is after is having an actual fight over her homosexuality, because he thinks "don't ask, don't tell" with reference to a nomination in inherently an anti-gay atmosphere and he wants to have a battle that he believes the social conservatives are going to lose.

Anyway, what do you think? Does it matter if Kagan is gay? If so, why?

(taken and edited without permission from an article by:  Rod Dreher on beliefnet.com)

3 comments:

Geoff said...

Very insightful post! I always enjoy your writing Tom.

Regarding Kagans sexuality....In a perfect world, her purported gayness wouldn't be an issue in regards to her serving on the court.

It wouldn't/shouldn't be, any more of an influence than a heterosexual judges sexuality influencing their decision. Both have a perceived stake or color to their rulings because as human beings we all bring the sum total of who we are to the table.

Ideally we always hope (pray) our SCOTUS Justices will, in the end...do their job impartially.

(I don't see Scalia doing that in his judgements and outside the court speeches however....so might Kagan, IF she is a friendly gay, perhaps be the yin to his yang?)

manxxman said...

Did it matter that Clarence Thomas was black.....he's never once supported black issues....so see it can be done.

George got his picks (even when his party made him back down on one of them......and I think she would have been much better then the one he chose second.....Scalia)....but that's not how the Republicans operate....this is just one more stick for them to throw on the fire, and believe me they are going to heave it. What are the odds that no Republican will vote for her confirmation.

Tom (Thomas) Rimington said...

manxx, Do you remember those hearings though? They were awesome television!

tOM

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