Will Kagan’s orientation be an issue?

posted at 6:18 pm on May 10, 2010 by Allahpundit

I’m not asking whether it should be — pencil me in as a “no” on that — but whether it will. I don’t see how it can be avoided, especially with gay marriage on the Court’s radar screen in the not-too-distant future. Some social cons will object to a gay justice and will want the GOP to find out what’s up with Kagan; some gay rights activists will object to a closeted gay justice and will want the White House to come clean. As much as centrists on both sides will cringe at the thought of an “is she or isn’t she?” subplot at the hearings, it ain’t the center that’s driving this train in an election year. With noted “conservative of doubt” Andrew Sullivan already raising the alarm that The One is advancing “the cause of the closet,” how long can Team Barry hold out?

It is no more of an empirical question than whether she is Jewish. We know she is Jewish, and it is a fact simply and rightly put in the public square. If she were to hide her Jewishness, it would seem rightly odd, bizarre, anachronistic, even arguably self-critical or self-loathing. And yet we have been told by many that she is gay … and no one will ask directly if this is true and no one in the administration will tell us definitively.

In a word, this is preposterous – a function of liberal cowardice and conservative discomfort. It should mean nothing either way. Since the issue of this tiny minority – and the right of the huge majority to determine its rights and equality – is a live issue for the court in the next generation, and since it would be bizarre to argue that a Justice’s sexual orientation will not in some way affect his or her judgment of the issue, it is only logical that this question should be clarified. It’s especially true with respect to Obama. He has, after all, told us that one of his criteria for a Supreme Court Justice is knowing what it feels like to be on the wrong side of legal discrimination. Well: does he view Kagan’s possible life-experience as a gay woman relevant to this? Did Obama even ask about it?

That’s the best argument for making this an issue. Per his own admission, The One’s a fan of “empathy” on the bench; to all appearances, Sotomayor’s “wise Latina” theory of jurisprudence was a feature for him, not a bug. If identity’s that important to judicial philosophy in the liberal imagination, then by Obama’s own standards, Kagan’s identity should be fair game. Problem is, as fun as it’d be to watch him squirm over this, to press him on it would jeopardize a moment when most of the right and left seem prepared to ignore the ambiguity about Kagan’s orientation and judge her on her qualifications. That seems like a good place for society to have reached; it ain’t “she’s here, she’s queer, get used to it,” but “she’s here, she may be queer, and it’s no big deal” ain’t beanbag. Do gay-rights supporters want to endanger that sentiment with an identity politics passion play at the hearings, replete with a Category Five media clusterfark?

Gibbs is taking a “none of your business” approach thus far. Libertarian-minded conservatives will, I trust, want to encourage him. The task for less libertarian-minded conservatives, I guess, is to decide how much they actually agree with Obama’s “empathy” theory of judging. If you think Kagan’s possible homosexuality will affect her vote on gay (or other) issues, even if she swears to judge cases purely on the legal merits, then you’re with The One. But please do explain why you think her orientation, rather than her liberalism, will be the determining factor. Because I’m pretty sure Breyer, Ginsburg, and Sotomayor are all straight, and I’m also pretty sure how they’ll vote if and when gay marriage finally reaches the Court.


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She’s gay??? Gasp, OMG… you’d never know it to look at her… As a side, sexist, chauvinist note… Are there ANY attractive liberal women??

sacfly on May 11, 2010 at 10:09 AM

A little OT, but I love how the left is playing this game where – due to lack of a paper trail – they are not sure she is liberal enough.

Let’s see: Upper West side, Jewish, lesbian, Harvard. If she was one inch to the right of the NY Times editiorial page, it would be a miracle.

johnboy on May 11, 2010 at 10:11 AM

She’s gay??? Gasp, OMG… you’d never know it to look at her… As a side, sexist, chauvinist note… Are there ANY attractive liberal women??

sacfly on May 11, 2010 at 10:09 AM

yes – Kirsten Powers, liberal contributer to Fox News (one of Allah’s favorites). Non-pundit attractive liberal women include Halle Berry, Jessica Alba, and most others, attractive and rich enough not to care how much Obama taxes them.

kscheuller on May 11, 2010 at 10:21 AM

She is a crusading lesbian (read: Andrew Sullivan). She dissed the military because she didn’t agree with her bias opinion of “Don’t Ask Don’t Tell”.

In essence, she views all matters from the prism of her sexual orientation.

Obama must think he is the modern day Noah building his ark full of one-offs.

Captain America on May 11, 2010 at 10:23 AM

So, by all means, get back to the important questions about her physical appearance and sexual preferences. Deep, riveting Constitution-bending stuff there, guys. Well done. Well done.

Midas on May 10, 2010 at 10:15 PM

I also wish that the comments were full of insightful, but there many stupid people out there and some feel the need to comment here on Kagan’s appearance or sexual orientation. It’s pity we can’t prod them into an activity more appropriate to their mental capabilities like watching WWF (the fake wrestling show, and it could be called something else now).

And to be fair there are some good comments on this thread.

thuja on May 11, 2010 at 10:27 AM

Thuja, it matters that she’s gay. Why this fiction that is doesn’t? Inexperience plus deep bias are dangerous on the supreme court.

SarahW on May 11, 2010 at 10:35 AM

SarahW, you hit the nail on the head, if she demonstrates that bias. If she does not, then the only thing I would be absolutely horrified by is no judicial experience. We aren’t in the 1800s where a law degree was obtained by reading Blackstone and hanging out a shingle. Our SC is all about what we do about judicial restraint, judicial activism and judicial precedent. With no experience with any of that, how in the hell can we be assured that one-ninth of the judicial opinion foisted off on us by the SC won’t just be frittered away?

Tennman on May 11, 2010 at 10:47 AM

Given her background, Kagan is deja vu, all over again.

kingsjester on May 11, 2010 at 10:48 AM

Polling says that it is a 55/40 split in favor of it….. but the source is Vannity fair, so I would venture a guess that outside of their audience it would be much higher opposed.

http://www.vanityfair.com/magazine/2010/05/60-minutes-poll-201005?currentPage=8

ericire12 on May 11, 2010 at 11:00 AM

My problem with her orientation is that it makes it perfectly obvious that she’s a quota pick, despite the WH’s spin on the issue.

If the most brilliant jurist they could find just happened to be gay, I would have no problem with it. But clearly in this case, they were looking for the most viable gay (female) candidate they could find. This artificially and severely limits the pool of candidates, and the quality of the candidate suffers accordingly. This approach usually results in mediocrities like Sotomayor and Kagan who were not *primarily* chosen for their qualifications.

That said, Kagan sounds like a lightweight who won’t have much sway, so as far as quota picks go I suppose she’s not too awful.

Missy on May 11, 2010 at 11:04 AM

I prefer my Supreme Court Justices to be normal. I don’t think that’s asking allot.

repvoter on May 11, 2010 at 11:04 AM

The Supreme Court building has the Ten Commandments inscribed on the wall. One of those commandments reads:

“Thou Shalt Not Commit Adultery.”

If she is gay this could create a hostile work environment.
For her own comfort it might be necessary to make another selection.

The Rock on May 11, 2010 at 11:11 AM

This isn’t the kind of “natural law” to which tcn referred. Natural law is a philosophy discussing the nature of things, in particular human beings. It goes beyond our makeup, and deals with our purpose. It is the basis of Western civilization. It is truly tragic that so many people have no understanding of it.

DrMagnolias

Natural philosophy isn’t a set of hard and fast rules to live by. Although a lot of great things come out of it, like all human creations and ideas, it isn’t perfect. The idea that there is a common law breaks down when someone tries to hammer out the definition of common. I’m sure your idea of what is natural varies from my idea.

Someone who is incapable of controlling the most basic human activity is not normal.
Jaynie59

So you can control your sexuality and have felt homosexual leanings enough to choose heterosexuality? Congrats, then you’re bisexual. Some people would argue they can’t choose against their heterosexuality.

kc-anathema on May 11, 2010 at 11:21 AM

Thuja, it matters that she’s gay. Why this fiction that is doesn’t? Inexperience plus deep bias are dangerous on the supreme court.

SarahW on May 11, 2010 at 10:35 AM

You appear to be implying that her being gay would mean she has a “deep bias” that is “dangerous”. Since that doesn’t make sense, I’ll have to ask you to clarify.

thuja on May 11, 2010 at 12:05 PM

That’s not true. Someone that only conducts heterosexual acts is heterosexual. Someone that doesn’t conduct any sex acts is asexual.

blink on May 11, 2010 at 11:40 AM

I don’t think so, otherwise there are millions of asexuals but not by choice, but because they abstaining until marriage or simply can’t get a date. I wouldn’t call them asexuals.

Daggett on May 11, 2010 at 12:10 PM

kc-anathema on May 11, 2010 at 11:21 AM

I’m not sure you understand the philosophy of natural law. Have you ever studied it?

DrMagnolias on May 11, 2010 at 12:42 PM

I want strict constructionists and, with Obama nominating the candidate, it’s not likely that I’ll get that regardless of sex, race, orientation, religion, etc.

That said, I do think it’s problematic if she is gay and she and others are denying it. Perhaps I’m splitting hairs here, but, I find a difference between, “That is a private matter and has nothing to do with my ability to perform the job, so I will not answer it” (which is an answer I would respect) and “I/She am/is not gay” (which, if not true, would be a lie….I’m kind of tired of being lied to by elected and appointed officials).

JadeNYU on May 11, 2010 at 1:24 PM

I’m not sure you understand the philosophy of natural law. Have you ever studied it?

Minus about four philosophy courses I had to take in college, nope.

If, however, one identifies as ‘gay’, and constructs a lifestyle around that social construct, it does have an impact on their judgment.
Count to 10

And now I’m wondering how much arguing is taking place because many of us are using different definitions for gay. I’m using it purely as one person being sexually attracted to the opposite sex and not the expansive lifestyle built around exhibitionism and “feel good” living. Are the two hopelessly conflated at this point?

kc-anathema on May 11, 2010 at 1:50 PM

Nobody likes ugly lesbians.

logis on May 11, 2010 at 10:07 AM

The Race Card on May 11, 2010 at 2:13 PM

Perhaps I’m splitting hairs here,

Bias has that effect.

The Race Card on May 11, 2010 at 2:16 PM

I worry about this woman being on the court (for possibly many years), based on any number of things we know about her, or should I say, don’t know about her?

But I’m here because of something more important. Sorry if this is rather OT.

First of all, what does “The Word” have to do with this? You don’t know of me well, I’m a Catholic at mass every Sunday. Sorry to pop your balloon.
JetBoy on May 10, 2010 at 7:49 PM

:( From this statement I am led to assume that you admit to fully participating in the Mass (reception of the Holy Eucharist) while actively homosexual? Is that correct? If so, many questions come to mind. Not that I want or expect answers, but for your personal discernment… Such as: Are you Catholic, JetBoy? Why do you think so? Why do you want to be? Is it because you truly believe that the Holy Catholic Church is the one true Church, founded by Jesus? Do you believe Jesus is Lord and therefore inerrant? Do you believe the Church is in error in the case of homosexuality? If so, you realize you are denying the truth spoken by Jesus.

He gave the Church, under the leadership of His appointed shepherd Peter, the authority to bind and loose, to teach His gospel, and the Church has always taught the sinfulness of homosexual practice, based on scripture and Sacred Tradition. It is very clear. If the Church was in error on this, then it would lose all claim to authority on any truth. If His Church was wrong, then Jesus erred. If Jesus erred, we all believe a lie. So, what you are saying, each Sunday at Mass when you ignore Holy Mother Church’s laws, God’s laws?

To be in communion with the Church, to be Catholic, you must accept the rightful authority given to her by Jesus to teach the Truth on matters of faith and morality, even when you don’t like what that Truth reveals. I’m sure you already know these things, as a Catholic at Mass every Sunday, but for those unfamiliar with the very clear teaching of the Church:

Catechism of the Catholic Church 2357. “…Basing itself on Sacred Scripture, which presents homosexual acts as acts of grave depravity, (Cf. Gen 19:1-29; Rom 1:24-27; 1 Cor 6:10; 1 Tim 1:10) tradition has always declared that “homosexual acts are intrinsically disordered.” (CDF, Persona humana 8) They are contrary to the natural law. They close the sexual act to the gift of life. They do not proceed from a genuine affective and sexual complementarity. Under no circumstances can they be approved.

CCC 2359. “Homosexual persons are called to chastity. By the virtues of self-mastery that teach them inner freedom, at times by the support of disinterested friendship, by prayer and sacramental grace, they can and should gradually and resolutely approach Christian perfection.”

CCC 2396. “Among the sins gravely contrary to chastity are masturbation, fornication, pornography, and homosexual practices.”

And this is how it has always been:

“For it is a good thing to refrain from lusts in the world, for every lust warreth against the Spirit, and neither whoremongers nor effeminate persons nor defilers of themselves with men shall inherit the kingdom of God, neither they that do untoward things.” From the Epistle of St Polycarp (who personally knew and often accompanied St John, the Apostle)

“It is well that they should be cut off from the lusts of the world, since ‘every lust wars against the spirit’ and ‘neither fornicators, nor sodomites will inherit the kingdom of God.’” St. Clement of Rome (“First Epistle To The Corinthians,” c. 96 A.D.)

“Some polluted themselves by lying with males. The Greeks, O King, follow debased practices in intercourse with males, or with mothers, sisters, and daughters. Yet, they, in turn impute their monstrous impurity to the Christians.” St. Aristides (“Apology,” c. 125 A.D.)

“Those shameful acts against nature, such as were committed in Sodom, ought everywhere and always to be detested and punished. If all nations were to do such things, they would be held guilty of the same crime by the law of God, which has not made men so that they should use one another in this way.” St. Augustine (“Confessions” c. 400 A.D.)

How do you rationalize this?

Therefore whosoever shall eat this bread, or drink the chalice of the Lord unworthily, shall be guilty of the body and of the blood of the Lord. 28 But let a man prove himself: and so let him eat of that bread, and drink of the chalice. 29 For he that eateth and drinketh unworthily, eateth and drinketh judgment to himself, not discerning the body of the Lord.”

Eateth judgment to himself….Does that not put the fear of God in you? It does me. Please, JetBoy. If you are Catholic, try to follow Christ and take up your cross instead of continuing to proudly profess your heresy. In a way, you are one of the lucky ones. Your cross is clearly laid out before you. Will you pick it up? I will pray for you. Please do the same for me.

pannw on May 11, 2010 at 2:29 PM

Who knows ? If she appears for a publicity stunt on Ellen will they have to be kept on separate couches?

We have a tax dodger as Secretary of the Treasury. The CIA Director is a shady Clintoon hack. The Secretary of State has a memory which conveniently blanks under oath. Nutpolitano depends upon terrorist screw-ups to keep her job. In the freak show know as the Obama Administration anything is possible.

viking01 on May 11, 2010 at 2:42 PM

Minus about four philosophy courses I had to take in college, nope.

kc-anathema on May 11, 2010 at 1:50 PM

I see. I couldn’t tell. I have a PhD, myself, so I’ve taken plenty of them.

DrMagnolias on May 11, 2010 at 3:09 PM

Are there ANY attractive liberal women??

Not in politics.

As far a Kagan goes, I don’t care if she’s lesbian as long as she’s got a hot girlfriend. If Kagan does not make it on the Court, possibly she could revive the SNL skit, “Androgynous Pat”.

scullymj on May 11, 2010 at 3:29 PM

The only two relevant questions that I can see are:
1. Will she be worse that Stevens was, and
2. Will Obama be likely to nominate anyone better if she gets shot down?

I would say no to both of these. As with Sotomayor, I think Obama could have done a lot worse.

If conservatives just keep their mouths shut on the gay issue, we might get to see the gay left shoot her down for us for being in the closet. That would be fun, in a dirty, schadenfreudy kind of way, but it raises the sticky question: if they attack her do we come to her aid to prevent someone worse from being nominated? I don’t have a good answer to that, but I think “yes, but quietly” might be worth considering.

JackOfClubs on May 11, 2010 at 4:22 PM

I prefer my Supreme Court Justices to be normal. I don’t think that’s asking allot.

repvoter on May 11, 2010 at 11:04 AM

I take it then that you’ll never accept a judge that has Asperger’s Syndrome since-by much of society-we’re not considered ‘normal’.

annoyinglittletwerp on May 11, 2010 at 4:32 PM

Mother Jones is asking: Why Do So Many People Think Elena Kagan Is Gay?

I didn’t realize the evidence was so thin. Does anyone know more about this? Surely, it couldn’t be that Andrew Sullivan is … overreacting? Naw.

JackOfClubs on May 11, 2010 at 4:55 PM

I see. I couldn’t tell. I have a PhD, myself, so I’ve taken plenty of them.
DrMagnolias

I’m sorry, are we dueling degrees here? I suppose a master doesn’t count to snuff in this, although I wouldn’t presume to lecture someone from a point of superiority based on a bit of sheepskin. Lord knows there are plenty of degreed liberals out there.

kc-anathema on May 11, 2010 at 4:57 PM

Just out of curiosity – are you expecting a “no” answer?

blink on May 11, 2010 at 4:47 PM

No-I wasn’t.
I was just making the point that only place one will find ‘normal’ is in the dictionary and next to Bloomington, Il.

annoyinglittletwerp on May 11, 2010 at 5:36 PM

I take it then that you’ll never accept a judge that has Asperger’s Syndrome since-by much of society-we’re not considered ‘normal’. annoyinglittletwerp on May 11, 2010 at 4:32 PM

One’s a disease, the other’s disordered behavior.

Akzed on May 11, 2010 at 7:57 PM

One’s a disease, the other’s disordered behavior.

Akzed on May 11, 2010 at 7:57 PM

I disagree. It’s not something like the Flu that needs curing. I don’t take meds for. I wouldn’t even if such things. existed My brain’s just wired differently.
While I’m certainly no cheerleader for homosexuality ‘normal’ is subjective rather than objective.

annoyinglittletwerp on May 11, 2010 at 10:16 PM

We need a little ‘normal’ to offset all this crap thats been getting in offices. Can her.

johnnyU on May 11, 2010 at 11:48 PM

Are there ANY attractive liberal women??

If they don’t open their mouths, yes.

Metro on May 11, 2010 at 11:52 PM

Her… her… orientation? OMG! Allah, she’s not… she’s not… she CAN’T BE… left handed?!?

theCork on May 12, 2010 at 2:07 AM

She’s gay??? Gasp, OMG… you’d never know it to look at her… As a side, sexist, chauvinist note… Are there ANY attractive liberal women??

sacfly on May 11, 2010 at 10:09 AM

I have a poster of Janet Napolitano in the same pose as that Farrah Fawcett poster if you want…

theCork on May 12, 2010 at 2:23 AM

I think the issue is that she’s very matronly looking. Why that bothers anyone for this position is beyond me.

AnninCA on May 12, 2010 at 7:55 AM

At the end of this administration I an picture Ms. Kagen and Secretary Napolitano driving off into the sunset in search of their older and wiser sister the Honorable A.G. Reno.

To all of Law Enforcement officers out there. In 2012, or possibly earlier, be careful when approaching Red Pick-ups with three women inside and gun rack inside.

Thelma and Louise, with a twist.

MSGTAS on May 12, 2010 at 9:21 AM

I think the issue is that she’s very matronly looking. Why that bothers anyone for this position is beyond me.

AnninCA on May 12, 2010 at 7:55 AM

Don’t you mean “paternal”?

theCork on May 12, 2010 at 10:10 AM

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