Elena Kagan: Dean, Justice, Lesbian?



I'm pleased to announce that Ari Ezra Waldman, who wrote an excellent analysis of Judge Walker's Prop 8 ruling here on the site, will be writing a regular bi-weekly column for us dealing with issues related to law and LGBT rights.

AriAri is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His area of expertise are criminal law, criminal procedure, LGBT law and law and economics.

His first column looks at Supreme Court Justice-designate Elena Kagan, and his experience as a student at Harvard, when she served as dean of the law school — AT.

She hates the military, loves socialism and can’t drive.  She also plans to impose Sharia law on America, lies to protect partial-birth abortion and thinks slavery was a bad idea.  How the last one actually disqualifies Elena Kagan from serving on the United States Supreme Court is something you should ask Republican National Committee Chairman Michael Steele.

But what worries her detractors most about Justice-designate Elena Kagan is that she plays softball, crops her hair short and never married a man.  Clearly, that means she’s a lesbian. 

And, apparently, her radical lesbianism caused her to do all sorts of sordid things during her tenure as dean of Harvard Law School.  She “forced” Blue Cross and Blue Shield to cover sex-change operations and will “forc[e] all women and little girls … to share public restrooms with cross-dressing men.”  Her supposed lesbianism not only affected, but supposedly dominated the policies of her deanship.  And that has moved the conservative Liberty Counsel to wonder: “Can a sitting justice, potentially engaged in the homosexual lifestyle, be trusted…?” 

I attended Harvard Law School during the early years of Justice-designate Kagan’s tenure as dean and either I slept through that or it simply didn’t happen.  If you ask my law school roommates – one of whom is now on the faculty at HLS – they will tell you that none of us did much sleeping.

As dean, Justice-designate Kagan was known more for the free coffee in the morning, renovations to 1970s era buildings and, I am told, free tampons in the women’s bathrooms.  She also renovated the gym, which used to resemble a scene out of a cheaply made horror film, and spent a few thousand dollars to build a now-defunct ice-skating rink.  As a gay man, I appreciated the vastly improved workout environment, but as a terrible skater, I have her to thank for my one-week affair with a seat cushion.

That may sound trifling or trivial, but sometimes, it’s the little things that vastly improve morale.  She also hired countless faculty, raised more money than any previous dean in the school’s history and reduced class size.  She took over the deanship at a time when the best thing students said about the law school was that at least it wasn’t located in New Haven, Connecticut.  But, no one was really happy.  The intellectual property law professor didn’t know how to use email, on-campus housing could have doubled as Arkham Asylum in a Batman movie and the aging faculty hadn’t updated their syllabi in ten years.  Pre-Kagan, Harvard Law School was a dark place of 150-student classes, unapproachable professors and no Wi-fi.

Then-Dean Kagan spent her tenure improving student services, making the Law School friendlier and improving student morale.  Her leadership in upholding the school’s anti-discrimination recruiting rules may have gotten more national press, but a notoriously busy student body probably appreciated the cafeteria’s better food a little bit more.

I had the pleasure of meeting and talking with then-Dean Kagan both informally – as an actor in the school’s musical Parody that made fun of her love of pants suits – and officially – as a representative who tried to reach compromises on military recruiting.  She is pleasant, endearing and whip smart, and she used her considerable talents to try to improve Harvard Law School during her tenure there.  You can’t ask more of a dean.

What any of this says about what kind of Supreme Court justice she will be is unclear to me.

As dean, she spent most of her time raising money, spending it to improve the school and making student life a little more bearable between the all-night study sessions and the 500-pages of Con Law reading.

Her academic publications are brilliant, but yeoman-like in their subject matter.  In 1992, she wrote about two cases I teach my students in “The Changing Faces of First Amendment Neutrality: R.A.V. v. St. Paul, Rust v. Sullivan, and the Problem of Content-Based Underinclusion.”  And, in 2001, she used 122 pages to write about executive power in “Presidential Administration.”  If that gets your blood boiling, I suggest expanding your passions in life.

She supported those members of the school’s gay community who objected to the military’s presence on campus, but brokered a compromise that allowed the military to recruit without any real restrictions. 

She served in the Clinton Administration, but ask any of her students and they will tell you that her personal politics never came through in class. 

But, I cannot speak to her sexuality without resorting to hearsay, rumor and gossip.  But why should it matter even if I knew her sexual orientation first hand?  There are gay people who support hate crimes laws and there are many who think criminalizing our thoughts is just wrong.  There are gay people who vote Republican because they want lower taxes and there are many who vote Democratic because they want to save their jobs.  There are gay people who believe civil unions are necessary first steps toward marriage equality and there are those who see anything short of the right to marry as insulting.  Our sexuality does not define the entirety of our lives, nor, I venture to guess, would it define Justice-designate Kagan if she is indeed a lesbian. 

As her former student, I appreciate what she tried to do when serving the students and faculty of Harvard Law School, even though much of what she changed was for show.  I have faith in her mind and faith in her ability to do the right thing.  While having faith in something is unnerving for those of us who believe in science, evidence and rational argument, few rookie Supreme Court justices can be pinned down before their first vote, their first opinion or their first dissent.  For now, I wish Justice-designate Kagan good luck and remember Jack Kerouac: “It’s goodbye, but we leave for the next great adventure under the sky.”

UPDATE: Did I really provide any analysis?

Purposely no, and I think that's the point.  Many in the media, the left and the right have been asking what kind of justice Elena Kagan will be.  They have looked at her publications and her time as dean, at her work in the Clinton Administration and her time on the Upper West Side of Manhattan.  To spell out the point, none of this can really tell us who Justice Kagan will be.  When Lyndon Johnson moved from the Senate to the White House, people wondered how a relatively Texas Democrat who had never been friendly to civil rights could become the greatest social liberal of his generation, banging heads together to pass the Civil Rights Acts, the Voting Rights Acts and enforcing integration.  He said to the prominent civil rights activist Roy Wilkins on PBS that having escaped his Southern political restrictions as a representative of a conservative state, he was "[f]ree at last, free at last."  The interview aired on January 6, 1964 and it shows how unpredictable politics can be.  The Supreme Court bench is even more unclear.  Justice Souter's resume screamed conservative with a capital "C", yet he became a dyed in the wool member of the "liberal" wing.  Justice Brennan was a New Jersey moderate close enough to Republican political circles to get President Eisenhower to nominate him.  And he turned out to be this country's greatest liberal jurist.  The lesson here is you never know.  So, why ask.