Lesbian Rumors Swirl Around Supreme Court Nominee Kagan
President Obama has announced his nomination of Solicitor General Elena Kagan as a nominee to replace the retiring Supreme Court Justice John Paul Stevens. But even though Kagan's name was circulated as a potential replacement for David Souter last year--with rumors that the unmarried Kagan was lesbian rife at the time, but not exciting controversy--suddenly, those same rumors are exciting considerable response--from the left.
Salon.com reported in a May 9 article that Kagan's impending nomination has sparked accusations from the left that the rumors are the result of a right-wing "whispering campaign" designed to derail the nomination. According to the Salon.com article, the Huffington Post has come out pro-actively pushing back against the rumors of Kagan being a lesbian, while the Human Rights Campaign has called that speculation "straight out of the right-wing playbook."
"But wait, there's more!" the Salon.com article read. "This isn't just leftists shaming all lesbians and gays and denying the legitimacy of nominating a member of our minority when representation of diversity is supposedly a fundamental value of leftism. Gays and lesbians are also joining in!
"Oh, and no one has interviewed Kagan to ask her to settle the matter," the article noted.
However, the White House and the Human Right Campaign have declared that Kagan is not, in fact, a lesbian, The Huffington Post reported in an April 16 article. HRC spokesperson Michael Cole sent an email to the Huffington Post saying that Kagan's nomination would prove a money-maker for radical right-wing groups thanks to the lesbian rumors. "Even though the majority of Americans couldn't care less about a nominee's sexual orientation, the far right will continue to be shameless with their whisper campaigns to drum up their base and raise money off of prejudice," wrote Cole.
Meantime, the White House had already declared that Kagan was heterosexual, a denial that was triggered by an April 11 blog at CBS by Ben Domenech, a noted conservative, who claimed that, if confirmed to the bench, Kagan would be the Supreme Court's "first openly gay justice."
The rumors may indeed be the result of nothing more than wishful thinking, but they might also play into any plans that Republicans might be laying to obstruct Kagan's confirmation. Alternatively, anti-gay groups might be looking to energize Republican lawmakers by making an issue of the rumors; the Huffington Post noted that although the influential anti-gay group Focus on the Family had indicated in 2009 that an openly gay candidate might not automatically draw the group's condemnation, this year that assertion changed into a vow to oppose any openly gay or lesbian nominee.
"We can assure you that we recognize that homosexual behavior is a sin and does not reflect God's created intent and desire for humanity," Focus on the Family's Tom Minnery said. "Further, we at Focus do affirm that character and moral rectitude should be key considerations in appointing members of the judiciary, especially in the case of the highest court in the land. Sexual behavior--be it heterosexual or homosexual--certainly lies at the heart of personal morality."
Walking a Fine Line
At the same time, the HRC sought to bolster Kagan's appeal to GLBT constituents with a May 10 press release applauding Obama's expected nomination and noting that Kagan "has a demonstrated understanding and commitment to protecting the liberty and equality of all Americans, including LGBT Americans," not least because Kagan had challenged a law that allows federal funds to be withheld from universities and colleges that do not allow military recruiters on their campuses because of Don't Ask, Don't Tell.
The 17-year-old anti-gay ban that requires gay and lesbian soldiers to keep their sexual orientation under wraps or face discharge runs afoul of anti-discrimination policies in effect at many of the nation's institutes of higher learning. The Supreme Court itself upheld the law that says those institutions can be fiscally punished for trying to enforce their own policies.
"Issues that are critical to the LGBT community may reach the Supreme Court in the next few years, including issues related to marriage equality, the "Don't Ask, Don't Tell" law, the Defense of Marriage Act, and the new federal hate crimes law. When issues like these come to the Supreme Court, it is vital that we have fair-minded judges to rule on these cases," the HRC news release, which steered clear of any mention of Kagan's sexuality or the rumors of her being a lesbian, said.
The Associated Press reported nothing about the rumors, saying only that Kagan is not married. A May 10 AP article also noted that if confirmed, Kagan would be the 112th justice named to the United States Supreme Court--but only the fourth woman. Her joining the court would also mark the first time that three of the nine justices were women.
The AP article also said that there is little serious expectation that Kagan will not be confirmed, though there could be some hesitation based on the fact that she has never been a judge. However, Kagan's knowledge of the law and of judicial process is impeccable: she served as dean at Harvard's law school for six years, served as a policy aide in the Clinton administration, and has served as solicitor general for the Obama administration. That post, noted the AP, is "known informally as the "tenth justice," with the solicitor general "represent[ing] the United States, including defending acts of Congress, at the Supreme Court and deciding when to appeal lower court decisions."
At age 50, Kagan would be the youngest justice, and since Supreme Court justices serve for life, she could be on the court's bench for decades to come.
Conservative blog Rightly Concerned characterized the lesbian rumors as an "open secret," claiming that Kagan has a female life partner who is out of the closet. "Well, it's take two to tango, and so the math is pretty easy here," the article says.
"Are You Now or have You Ever Been...?"
Meantime, anti-gay blog Americans for Truth About Homosexuality declared in a May 10 article that Kagan--and some lawmakers--should be required to answer the question, "Are (or were) you a practicing homosexual?"
"If Kagan is practicing immoral sexual behavior, it reflects on her character as a judicial nominee and her personal bias as potentially one of the most important public officials in America," declared AFTAH blogger Peter LaBarbera. "The popular mantra--even among conservatives--is that Kagan's sexuality is 'irrelevant.' But a Justice Kagan would help decide some critically important constitutional issues dealing with: homosexual 'marriage' as a supposed civil right; religious liberty and freedom of conscience; and the First Amendment as applied to citizens' right to oppose homosexuality. So it certainly matters if she, as a lifetime judge, could emerge as a crusading (openly) 'gay' advocate on the court."
Continued LaBarbera, "Besides, in an era of ubiquitous pro-gay messages and pop culture celebration of homosexuality, it's ridiculous that Americans should be left guessing as to whether a Supreme Court nominee has a special, personal interest in homosexuality." Added the anti-gay blogger, "Similarly, any legislator--especially one representing a conservative district--should come clean on the homosexuality question particularly if it is an 'open secret' like Mark Foley's homosexuality (years before the page scandal) or becomes the subject of wide speculation."
Added LaBarbera, "We appeal to Kagan and all potential 'hiding-in-the-closet' public officials to answer the question: 'Are (or were) you a practicing homosexual or do you consider yourself homosexual (gay)?' "
LaBarbera went on, "Homosexuals' privacy interests simply do not outweigh the public's right to know about potential conflicts-of-interest in the lives of their judges and lawmakers."
CampusProgress.org noted in a May 5 article that another name that had frequently been mentioned as a possible Obama pick to replace Stevens was Kathleen Sullivan, a Stanford Professor of law and an open lesbian. "On paper, Sullivan is exceptionally well qualified for the seat," the article said. "She is a Marshall scholar and former Stanford Law dean who constitutional law legend Laurence Tribe once called 'the most extraordinary student I had ever had.'
"Sullivan is both an academic expert on constitutional law who wrote a widely used textbook on the subject and an experienced appellate lawyer," the article continued. "She has argued before the Supreme Court on cases involving everything from the McCain-Feingold campaign finance reform legislation to New York and Michigan state laws banning interstate wine shipments."
In an address, Kagan thanked President Obama, saying, "I am honored and I am humbled by this nomination and by the confidence you have shown in me." Kagan added, "During the last year, as I have served as solicitor general, my long-standing appreciation for the Supreme Court's role in our constitutional democracy has become ever deeper and richer.
"The court is an extraordinary institution in the work it does and in the work it can do for the American people by advancing the tenets of our Constitution, by upholding the rule of law and by enabling all Americans, regardless of their background or their beliefs, to get a fair hearing and an equal chance at justice," Kagan continued.
The nominee also expressed her gratitude to her family, saying, "If this day has just a touch of sadness in it for me, it is because my parents aren't here to share it. They were both, as the president said, the children of immigrants and the first in their families to go to college." Added Kagan, "My father was the kind of lawyer who used his skills and training to represent everyday people and to improve a community.
"My mother was a proud public schoolteacher, as are my two brothers: the kind of teachers whom students remember for the rest of their lives." Kagan went on to say, "My parents' lives and their memory remind me every day of the impact public service can have, and I pray every day that I live up to the example they set.
"Mr. President, I look forward to working with the Senate in the next stage of this process," said Kagan. "And I thank you again, Mr. President, for this honor of a lifetime. Thank you so much."