Elena Kagan Update: Who Wants Her Outed, Who Doesn’t, DADT, and Will She Have to Recuse Herself from Gay Rights Cases?


Since yesterday's nomination (and before) there has been much discussion of whether or not Elena Kagan is a lesbian, and if it even matters. Here's a round-up of some of it.

Among those demanding that Kagan disclose her sexuality:

Bryan Fischer of the anti-gay American Family Association:

"One qualification for public office is personal character, and nothing speaks to character more than the choices one makes when it comes to sexual conduct. Bill Clinton convinced an entire generation of America's youth that oral sex isn't really sex, and as a result we've seen an explosion among millenials in cancers of the throat and head caused by the HPV virus, which is spread through oral-genital contact.

It's time we got over the myth that what a public servant does in his private life is of no consequence. We cannot afford to have another sexually abnormal individual in a position of important civic responsibility, especially when that individual could become one of nine votes in an out of control oligarchy that constantly usurps constitutional prerogatives to unethically and illegally legislate for 300 million Americans.

The stakes are too high. Social conservatives must rise up as one and say no lesbian is qualified to sit on the Supreme Court. Will they?"

Homophobic wingnut Peter "Porno Pete" LaBarbera of Americans for Truth:

"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. 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.  Kagan has a strong pro-homosexual record, including, as Harvard dean, fighting to keep military recruiters off the campus because the military bars homosexuals. Americans certainly have a right to know if her activism is driven by deeply personal motivations that could undermine her fairness as a judge. 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.  Given the important homosexual-related issues coming before the Supreme Court , Kagan should say so if she has a personal interest in lesbianism."

Lesbian site Lez Get Real:

"Right now, rumours about Elena Kagan are hitting a fever pitch. Unfortunately, she cannot openly address the concerns people will have about confirming a gay person to the Supreme Court. She cannot name the homophobia of those that will oppose her confirmation. She will be battling whispers with shadows and there is no way to win that fight.
If she is not a lesbian, she needs to come out and say it, and put to rest the rumours and concerns. If she is gay, I believe she needs to say that too, and quickly. While being gay is not a shameful thing, being chased out of the closet can certainly make a person appear weak and lacking in integrity."

Blogger Andrew Sullivan:

"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…To put it another way: Is Obama actually going to use a Supreme Court nominee to advance the cause of the closet (as well as kill any court imposition of marriage equality)? And can we have a clear, factual statement as to the truth? In a free society in the 21st Century, it is not illegitimate to ask. And it is cowardly not to tell."

More on that topic from Sullivan here.


The Nation's Richard Kim

"Sullivan's reasoning is so naive that I have to wonder if there's some bizarre ulterior motive behind it—or if he's exorcising some old demons. Surely he knows that Kagan does not have a spouse (man or woman) and that she has never identified herself as gay. What exactly does he think is going to happen now? Does he imagine that Kagan, in an uncharacteristically un-butch moment, is going to break down in front of Orrin Hatch and tearily confess to having cloistered away a secret lesbian lover in some Cambridge bat cave because she was worried that Alan Dershowitz would be really really mean to her about it? Because that would go over really well for gay rights—what a role model!—never mind Kagan's confirmation…I don't know if Elena Kagan sleeps with women or men. I don't know if she sleeps with anyone at all. I don't care. What I do know is that she has never claimed to be a lesbian, that she's never spoken out in the first-person as an advocate of gay rights and that she has never publicly discussed a romantic relationship with a woman. Gay isn't some genetic or soulful essence; it's a name you call yourself–and Kagan has not done that. So in my book, case closed. Elena Kagan is not gay. Is she straight? I don't know, and again, I don't care. Why does she have to have a sexuality at all?

In a way, the mystery about her sexuality mirrors the mystery about her legal philosophy. We just don't know a whole lot. The Senate and the press have the right and responsibility to interrogate her about her legal opinions—not about her sex life."

Slate's Emily Bazelon and Dahlia Lithwick:

"We join the blogger who wrongly outed Kagan in hoping that since the White House has now spoken, everyone will simply shut up, as they should have in the first place, unless they have some evidence to back up their gossip….Whether or not the strategy works politically, the White House's announcement that Kagan isn't gay should end the matter, unless and until someone come up with some real proof to the contrary. The unfounded insistence that Kagan is a lesbian isn't about lies or hypocrisy (shades of, oh, Larry Craig and John Edwards) or even journalistic ethics. It's about making things up. There's simply no evidence that Kagan's pretending to be anything she's not. The underlying lesson may be that the confirmation wars are so completely toxic that we have come to assume every nominee reflexively lies about everything, up to and including his or her sexuality."

Meanwhile, aside from the gay question, conservatives have begun to mobilize against Kagan.

The National Organization for Marriage (NOM), via The Hill:

"The National Organization for Marriage (NOM) issued a statement today declaring that a vote to confirm Kagan "will be a vote for imposing gay marriage on all 50 states."

NOM is worried that Kagan would come down on the liberal side of a pair of potential Supreme Court cases. One seeks to overturn California's Proposition 8, while the second challenges the Defense of Marriage Act (DOMA), which defines marriage at the federal level as between a man and a woman.

As solicitor general, Kagan actually defended DOMA, angering gay rights activists. But NOM thinks Kagan defended the law on a purposively weak basis."

Right-wing pundit Bill Kristol (who previously called her "very respectable" and "impressive"), called her hostile to the military:

"Kagan has professed at times her admiration for those who serve in the military, even as she tried to bar military recruiters from Harvard Law School. But how does one square her professed admiration with her actions–embracing an attempt to overturn the Solomon Amendment that was rejected 8-0 by the Supreme Court–and her words?"

Here is Kagan's letter on the Solomon Amendment.

And here's Jeffrey Toobin of the New Yorker's take on Kagan's DADT stance

Kagan tried—tortuously—to steer a middle course. At first, she continued a previous policy of letting the military recruit. Then, in 2004, after the Third Circuit declared the Solomon Amendment unconstitutional, she evicted the military—sort of. She prohibited the military from using the school’s Office of Career Services, but allowed the recruiting of students to continue through the school’s veterans association. When the Solomon Amendment case went before the Supreme Court, Kagan sided with the plaintiffs—again, sort of. She signed a brief that did not go as far as the plaintiffs in the case wanted; the brief, written by her former Clinton Administration colleague Walter Dellinger, made a narrower point. It argued instead that the law did not apply as the government maintained. In any case, the Supreme Court unanimously rejected both the plaintiffs’ and Dellinger’s arguments and upheld the Solomon Amendment in full. Like virtually all universities, at this point, Kagan responded by allowing the military recruiters to return to full access to the school’s students.

In the meantime, while this controversy simmered at Harvard, Kagan made a special effort to make sure veterans felt welcome at the school. She initiated an annual dinner for them. She made sure to display no anti-military bias—quite the opposite, in fact.

Kagan’s parsing of the issue seems, well, positively Obamaesque. She tried to walk the line between her liberal campus and the conservative military (and Congress), and seems to have come pretty close to pleasing both sides. The issue will certainly get a vigorous airing during her confirmation hearing.

Meanwhile, Kerry Eleveld and Andrew Harmon at the Advocate wonder if Kagan may have to recuse herself from gay rights case currently making their way to the Supreme Court because of her short tenure at the Justice Dept:

Kagan’s ability to rule in those lawsuits as a Supreme Court justice would depend on the amount of input she had in them while serving at the Justice Department. Though neither case is currently before the court, Ronald D. Rotunda, a professor of law at Chapman University, said Kagan might have taken part in the preparation.

“She may have had a role in [deciding] how the litigation proceeds, because the government wants to have a proper procedural posture in order to decide what positions it will take,” Rotunda said.

This is true for cases across the board. “There is no reason to single out LGBT-related issues," said Richard W. Painter, a professor at University of Minnesota Law School. "The recusal would apply to all cases she was involved with on any issue.”

It’s not always clear in which cases the solicitor general’s office has given its input, however. “If her name is on any [legal] brief, then it’s clear, but beyond that, it’s up to her disclosure,” said Erwin Chemerinsky, founding dean of the University of California, Irvine, School of Law.

While the decision would be left to Kagan, Chemerinsky said a recusal in, for instance, the Gill case challenging DOMA could prove problematic for LGBT advocates.

"If Kagan recuses herself, it certainly will hurt the challengers to DOMA because Stevens — or his replacement — would be so important for the challengers," he said. Based on the makeup of the court, conservatives and progressives could deliver a possible 4-4 split, which would mean that the lower circuit ruling would remain law. The court’s split decision would not set a precedent.

Finally, the Huffington Post's Sam Stein reports on the War Room that has been "unleashed" for the Kagan nomination. No mention there of the sexuality arguments, yet.