Monday, May 10, 2010

Elena Kagan...Judicial Woman of Mystery

Recently President Obama anounced his pick for Supreme Court Nominee in the person of Solicitor General Elena Kagan. Almost immediately she became the subject of intense public interest as we all pondered the impact she could have on important Supreme Court Rulings. Indeed, to dive into the blogosphere today is to immerse yourself in non-stop news, inuendo, and speculation surrounding Kagan. The number of blog entries about her nomination nearly equal those of the George Allen Rekkers rentboy scandal....thats alot people!

Now....I am not a news reporter or a politico. I am just a house dad watching the news, so my understanding may be limited. However, from my vantage point Elena Kagal presents more questions than she does answers as to what kind of Judge she will be should she win the appointment. Her voting record has been questioned and her actions as the dean at Harvard have been examined...those in which she moved to block the military from recruiting on campus because of DADT has led many to see her as staunchly liberal and pro gay rights. Her sexuality has also been questioned leading to wild speculation on both sides of the aisle. The only thing we know for sure at this point is that she seems quite adept at offering answers to questions that don't give away her personal views. She plays her cards close to the vest.

But it is roundly assumed that her rumored sexuality will cause her to rule in favor of cases critical to the gay which I say, "not neccesarily" on to find out why.

Rumors that she is a lesbian.....that have been officially neither confirmed nor denied....have led many of us to think that she could rule in favor of court cases critical to the gay the Log Cabin Republicans chalenge of DADT or the Olsen-Boies Prop 8 case. We have been cautiously celebrating that possibility, but without officiall confirmation, all we are left with is speculation and a mountain of questions.

In musing on the subject of sexual orientation and public figures I have asked myself the question, "If she is a lesbian, does that mean she will rule in favor of marriage equality?" In answer to that, I think we have all put far too much on sexuality as a determinate of political or judicial action. Of course, that hasn't stopped any one of us from speculating on that basis. Both gays and opponants alike expect her to rule in favor of the gay community already. much should anyone take sexual identity into consideration in evaluating the suitability of a public figure? and would we tollerate that form of speculation elsewhere?...probably not.

Groups like NOM are already up in arms about her nomination, with the likes of Maggie Gallagher crafting articles accusing her of being an activist judge bent on pushing gay marriage on the nation. Brian Fischer of the rabidly anti-gay American Family Association recently wrote a rather offensive article questioning Kagans ability to be a justice solely on the basis of her sexuality. In discussing her not answering questions about her sexual orientation he writes:

A refusal to answer is a tacit admission of guilt. But she may not be able publicly to deny she's a lesbian, likely because it's true. She may not be able to admit it either, because it could cost her a Supreme Court post.
My answer to him is ...WHY? How is that right? If she were denied the bench on the basis of her sexuality surely that would be gross discrimation and a proof of why we need laws like ENDA in the first place...yes? Would we not cry foul if this were any other job? Under his assertion a gay person would be unable to run for other government offices or ever be a President of the United States. (hey I can dream can't I?)

Sexual orientation will inform your view of the world, but it will not impare your ability to think objectively. It takes great thought and deliberation to arrive at even one ruling in the Supreme Court and afterwords Justices have to account for that cant just drag the nation wherever you want from the judges bench. People like Maggie Gallagher and Brian Fischer are attempting to create the fear that a lesbian Justice will make gay marriage legal everywhere as soon as she sits down to the bench which is absurd. Just because Kagal MIGHT be a lesbian does not mean that she will rule the way we would hope she would. There is ample evidence to back that up. For Example...

Judge Vaughn  Walker, who is currently presiding over the Olsen-Boies Prop 8 challenge, has recently been outed as gay. In his career he has sometimes ruled contrary to the wishes of the gay community when he felt the legal precedent wasn't on our side..thats a judges job. In the current federal challenge to the constitutionality of Prop 8, if he delivers a flat rulling for or against Prop 8, the opposing side will simply appeal and the case will move to a higher court with the intention of taking it to the Supreme Court. However, there is also some concern that he will rule in a manner that will strike down the constitutional amendment in California by showing that the intitiative violated state laws...not federal, which could prevent it from moving to a higher court....thus sinking that route to a possible national challenge to marriage inequality. Herein, we see a gay judge possibly acting to curtail the efforts to advance marriage equality.

Another cause for concern comes from Kagan herself. She is notoriously good at ducking around offering definitive opinions of many subjects except marriage. In a questionaire she answered during her nomination for her current role as solicitor General she answered Senator John Cornyns rather frank question about her stance on marriage equality. On page 28 of the transcript she answered thus:

1. As Solicitor General, you would be charged with defending the Defense of

Marriage Act. That law, as you may know, was enacted by overwhelming
majorities of both houses of Congress (85-14 in the Senate and 342-67 in the
House) in 1996 and signed into law by President Clinton.

a. Given your rhetoric about the Don’t Ask, Don’t Tell policy—you called it “a
profound wrong—a moral injustice of the first order”—let me ask this basic
question: Do you believe that there is a federal constitutional right to samesex

Answer: There is no federal constitutional right to same-sex marriage.

b. Have you ever expressed your opinion whether the federal Constitution should
be read to confer a right to same-sex marriage? If so, please provide details.

Answer: I do not recall ever expressing an opinion on this question.
When this hit the internet it was met with much concern. Kagan, who was viewed as being very pro-gay, now takes on a different dimension and one which makes us more cautious about her stance on gay issues. However, its possible the quote above may not mean what it seems on the surface. To read the above you would get the impression that she is either: A) not for marriage equality or...B) looking for a handy way out of answering Senator Cornyn's question directly. Either are possible.
While her comment may mean that its too early to depend on Kagan as a gay supporter in the Supreme Court, it also does not mean that the sky is falling. In another article, this time from The Hill, Republicans got their knickers in a twist over Kagals qouting of a portion of a speach from Thurgood Marshal which uses the term "defective" to describe the imperfect state of the original version of the constitution. In qouting Marshal...
Kagan quoted him as saying the Supreme Court’s mission was to “show a special solicitude for the despised and the disadvantaged.”
In my mind this softens the earlier questionaire answer to Senator Cornyn and shows Kagal feels it important to look out for the little guy but also that she may be a hard person to predict...which may be exactly why she was chosen.
In closing, I will not jump for joy yet....nor begin declarations of doom over the nomination of  Kagal. There is simply too much still to surface before an opinion can be made. However, I do believe that Elena Kagal's sexual orientation(whatever it may be) may have less weight on her decisions than it is currently getting credited for.
Until next time dear readers...


  1. Bryan,

    I have to disagree with your interpretation of Kagan's remarks. When she stated that "there is no federal constitutional right to same-sex marriage", that was a pretty simple answer to a complex question. But, if you think about it, it was a clever response. Because, in the U.S., marriage is an issue left to the states. I can marry my first cousin in Washington, DC, but not in Iowa. But Iowa is obligated to recognize my marriage to my first cousin. Bearing this in mind, Kagan would also likely answer that "there is no federal constitutional right to marrying your cousin."

    Instead, this thing is going to be played out on the fact that DOMA is unconstitutional...NOT that same-sex marriage is constitutionally protected. This is where I think Article 4 Section 1 of the constitution is going to come into play.

    Quite frankly, you've analyzed Kagan as if she were running for political office, and she's not. She's dealing with constitutional principles, not the emotions of an elected official. Bearing that in mind, let's get to the heart of what her constitutional principles might be.

  2. @SakuraPedaler

    "However, its possible the quote above may not mean what it seems on the surface. To read the above you would get the impression that she is either: A) not for marriage equality or...B) looking for a handy way out of answering Senator Cornyn's question directly. Either are possible."

    I happen to agree with you Sakura and thats what the above quote was meant to convey, though I guess I didn't make it clear enough. Whether it was a clever response to a loaded question or an intentional sidestep to avoid controversy are beside the point. Celebrating her as a champion for gay rights on the Supreme Court is a premature move.

    And I absolutely think that she can be viewed through the same eyes as a politician at this stage of her career. If she wants this job then she is more likely to use clever answers in order to move to the next level. Do not politicians do just that?

  3. I can't believe that they can openly fight against a potential judge because she may be a lesbian.

    I can understand the prejudice being being closed doors and openly finding some other reason to stop her but they are so blatant about it!

    Would they be the same with a black person from a racial point of view saying they would be too nice to other black people?

  4. I find this interesting but I think that it is silly to assume just because some one is gay they would automatically judge in favor of gay rights. To go by that same assumption them every straight judge should have therefor judged in opposition to gay rights issues, its a matter of is the person fit to look at the question being placed in front of them and make judgement based on the law.

    I love how people are up in a twist over the total lack of real information about her as a person when it comes to a nominee, has no one noticed that at least since I (at 23) can remember that is how all Supreme Court Justices nominees have been. They have all might as well have landed on earth form mars at the time of their nomination.

  5. You said,

    "If she were denied the bench on the basis of her sexuality surely that would be gross discrimation (sic)..."

    You could not be further from the truth. As I'm sure you and your partner are fully aware, there is no law in the US against discrimination based on a choice of sexual preference.

    The main stream thought on this is most likely something along the lines of "if a person is skewed in their sexual identity, it will most likely transfer to other areas of judgement."

    Those who buy into the deception that homosexuality is simply an 'alternative lifestyle' and not a deviant behavior have no trouble thinking that someone couldn't possibly have an altered way of thinking, because they don't feel as if their own thinking is skewed in anyway.

    That is a natural progression of the deception.

    I realize you couldn't care less about this comment and it will effect you in no way. It is good, however, for you to be reminded that there are many more people who disagree with your lifestyle and belief system than who agree.

  6. Marcus Brody, you can disagree all you want, it's not going to change, ever.

  7. "summer",

    Well said. Your overwhelming argument forces me to concede.


  8. @marcus

    "The main stream thought on this is most likely something along the lines of "if a person is skewed in their sexual identity, it will most likely transfer to other areas of judgement."

    I have no doubt that is absolutely true....that they believe that. The problem is they never stop to consider how they would feel if their sexual orientation was used against them in a discriminatory fasion. And why do they not think this through? Because heterosexuality is a part of the majority class. They don't have to think those thoughts or have those experiences. No one questions them on it.

    I wonder how the other justices would react if they were required to go through that additional layer of scrutiny? I bet there answers to probing questions about their sexuality would be, "go to hell. It's none of your dam business!" The assertion that their judgement is influenced by their bedroom activity is ludicrous to say the least. How does the fact that justice Scalia possibly prefers a romp through the Kama Sutra over the standard missionary position affect his ability to judge?
    But again...thats a layer of their lives that most straight people don't have to question and not matter how kinky their sex one labels it "deviant".

    So while there may not be a current law barring discrimination in the work place based on sexual orientation, I have faith that very soon there will be.

    And Mr. Brody, I say with all due respect...what you consider "deception" is my life and it has every bit as much value as yours does. I wonder what else you may consider "deception" that is an integral part of millions of other Americans lives and I wonder how they would feel to have such comments directed at them. are as entitled to your viewpoint as I am to mine...the difference is...neither one of us is supposed to be allowed to create laws that force that viewpoint upon another. All of us are supposed to be protected and treated equally under the law.