Judging Elena Kagan

It didn’t take long once President Barack Obama named Solicitor General Elena Kagan as his nominee for the Supreme Court, to replace retiring Justice John Paul Stevens, for pundits to speculate about her sexual orientation. What’s up here? What signs or clues do bloggers invoke? That she never married? Really, what does it matter? This should be a non-story, yet the chattering classes can't seem to help themselves.

In her breezy column on Wednesday in The New York Times, Maureen Dowd brought up the issue for a second time. Dowd began by drawing specific distinctions between “single” and “married” for both genders. “Men,” she writes, “generally more favored by nature as they age, can be single at all ages. But often, for women, once you’re 40 or 50, or simply beyond childbearing age, you’re no longer single. You’re unmarried—meaning it isn’t your choice to be alone….White House officials were so eager to squash any speculation that Elena Kagan was gay that they have ended up in a pre-feminist fugue, going with sad unmarried rather than fun single, spinning that she’s a spinster.” 


The May 22 issue of Christianity Today, an evangelical Christian magazine, features an article entitled “Who Is Elena Kagan?” by Tobin Grant, pointing up conservatives’ worry over the candidate’s position on gay rights, abortion and the military among other issues. Grant cites Focus on the Family Action’s weekly Web cast expressing worry that “Kagan’s lack of judicial experience leaves many questions unanswered….The basic question for any Supreme Court nominee ought to be: What is their judicial philosophy?” Makes good sense.

Kagan's critics should take a look at her impressive résumé and follow closely the questioning process during the confirmation hearings. Whether or not she is elevated to the bench, Kagan should be judged on her record, not on her personal life.

Patricia A. Kossmann


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Brian Thompson
8 years 8 months ago
She is toxic. Pure legal poison, but her sexuality is utterly irrelevant.
8 years 8 months ago
Earl Warren, Republican, was never a judge. Not toxic and not legal poison either, especially if you were African American. .
Beth Cioffoletti
8 years 8 months ago
I am really looking forward to the confirmation hearings of this very interesting and exciting woman!  My hunch is that she is one with a dynamic intellect, one which is always changing and adjusting to new information.  She is hard to pin down.  Like the quantum physics theorem where reality is changed by the presence of the observer, I suspect she could bring a very new energy to the Supreme Court, which seems to be stymied in a we/they mold of late.
She also looks like the kind of woman that I would love to know as a personal friend.
8 years 8 months ago
Supreme Court Justice is not like most jobs where one's personal life is irrelevant (e.g., my accountant might be a Nazi, but that's irrelevant to how he does my taxes). But a Justice is in the position of making decisions that affect all of our personal lives; and if her personal life is such that it would likely make her rule a certain way on social issues, then her personal life is relevant. Is a homosexual Justice likely to lean one way or another on homosexual marriage? Adoption LAWS? DADT? Hate crimes legislation? Abortion? Religion's role in society? LGBT teaching in schools?

To suggest that one's personal life is irrelevant to or separable from how a Justice will rule is being disingenuous, and in the present case, stupidly politically correct.
James Lindsay
8 years 8 months ago
Elections matter. Indeed, if the GOP would stop demagoging abortion for an electoral agenda and really address how to get beyond Roe in reducing abortion (by using Congressional action instead of attempting to overturn most equal protection doctrine by overturning Roe), they might have gotten more Catholic votes - although considering who they put on the ticket (an abortion demagogue who was not even familiar with the arguments on her own side) - that was unlikely to happen anyway. In other words, in a world of sane anti-abortion policy, Sarah Palin would not be where she was (or is).

I don't expect abortion to come up again judicially for the foreseeable future - accept around the edges. There are seven votes against overturning Roe - three of whom no counting Stevens - who were GOP appointees. When O'Connor retired, she was replaced origionally with Roberts - which replaced a pro-Roe centrists with one of the same. Roberts than replaced Rehnquist, which was an anti-Roe loss, since the former CJ voted with Scalia and Thomas. Souter was replaced by Sotomayor - a moderate for a moderate and now Stevens is being replaced by Kagan. This is a loss for the pro-choice side, since Stevens was in that camp while Kagan, who told Clinton to sign the Partial Birth Abortion Act, is probably moderate on the issue. We are left with two pro-choicers (Breyer and Ginsburg), two pro-lifers (Thomas and Scalia) and five in the middle (Roberts, Alito, Kennedy, Sotomayor and Kagan). Maybe I am wrong on elections mattering. They do matter on who gets to chose - however the choser appears not to be the most pro-abortion President in history.

I do expect economic issues to come up more. I hope that Kagan votes like a liberal - although given her mainstream career path, it is a hope, not an expectation. Her sexuality matters not, although even if she were a lesbian, I would hope she sides with Kennedy on the issue of gay marriage - against a body of state passed constitutional amendments which are motivated by malice towards a minority group and which, therefore, cannot be constitutional. It would be no more inappropriate to put Kagan on to agree with such basic justice as it was to put a prior Solictor General on the Court (Marshall) in order to vote correctly on civil rights matters. Even if the left puts up a hue and cry about her moderation on abortion, I doubt Obama will dump his long time friend (unlike Bush, who dumped Meyers and did not even come close to appointing Gonzales). Unless there is a total GOP fillibuster against her (and I doubt Bennett would follow it), she is in.
Nicholas Collura
8 years 8 months ago
A few points made in Michael Brooks's comment gave me pause. I think that the idea of "political correctness" is relevant here (although less explicitly than it was in the case of Justice Sotomayor, whose experience as a Latina was put right out on the table and didn't have to be gossiped or whispered about). Some use political correctness as a synonym for affirmative action (which it is not); the most charitable other reason I can imagine for impugning it is for fear that an exorbitant sense of delicacy might preclude people from speaking the truth. Apologists for "PC" see the matter altogether differently, and on this point alone, I think, they would agree with Michael and perhaps want to go further than Patricia does in her closing sentence: a person's experience is not, and cannot, be irrelevant to her moral-ethical worldview. Further, apologists for "PC" will welcome the voices of the maligned, the marginalized, and minorities (who, I suppose, may be more likely than others to develop an angry sense of social indignation OR a compassionate ability to look beyond differences - depending on the individual).
More pertinently, here: Michael, you fear that the lived experience of a homosexual justice would influence her decisions in ways you wouldn't like. My question is how this fear exists alongside this passage from the Catechism:

2358 "The number of men and women who have deep-seated homosexual tendencies is not negligible. This inclination, which is objectively disordered, constitutes for most of them a trial. They must be accepted with respect, compassion, and sensitivity. Every sign of unjust discrimination in their regard should be avoided. These persons are called to fulfill God's will in their lives and, if they are Christians, to unite to the sacrifice of the Lord's Cross the difficulties they may encounter from their condition."
Laying aside the question of "objective disorders" (since we have to answer for our "acceptance" and they for their sexuality) - can we be "respectful, compassionate, and sensitive" if we are so afraid of what their experience may have to teach us? If we approach every hypothetical homosexual candidate with fear and distrust, can we honestly say that we're "avoiding unjust discrimination"? Are we never to allow a gay Court Justice at all?
Perhaps before confirming one, you would propose a litmus test and wait for a sign that a homosexual justice wouldn't legalize gay marriage. I suppose this would be fair enough for someone whose conscience couldn't honestly support gay marriage. However, your long litany of other qualms worries me a little. Does a Catholic need to endorse "Don't Ask, Don't Tell"? I hope not, because I certainly don't. That particular law crosses the line between "defending a certain idea of marriage" and "forcing people to live in secrecy and fear about themselves"; and maybe if the people involved in crafting and maintaining it had had a more personal experience with the trials of homosexuality, many and perhaps most of which are imposed by societal homophobia and not by some "natural law," it would have been shorter-lived than it was. 

Kate Smith
8 years 8 months ago
I was thinking about John Roberts recently, and his confirmation hearing.   I knew I was not in agreement with his political stance or his take on the world - and his subsequent decisions confirmed that.   But I liked how he was treated by our representatives in Congress.   I remember that.  
I expect the same treatment for Elena Kagan.
8 years 8 months ago
Dear Nicholas -
I believe that there is a distinction between treating someone with respect, compassion, and sensitivity; and accepting all of his acts and beliefs as acceptable in God's eyes; and/or accepting those acts and beliefs as acceptable for the whole of society and the law of the land.  
If we start with the belief that homosexuality is a disorder, then why would we want disordered people making law and policy regarding their very disorder?  Wouldn't we be better served as a society to try and determine the cause and develop a cure for the disorder?  That's what we do with most other disorders.  Instead, we have fallen for the pleas of this small group of sinful individuals who do not want the affliction to be cured and allowed them to acquire such power as to even change the definition of "normal" as applied in psychiatric diagnosis.
Now, mind you, I haven't given this a lot of thought, but I'd perhaps be ok with an admitted homosexual on the Court whose resume exhibits a track record showing conservative values, including pro-choice and anti gay marriage beliefs (I've no doubt that they exist).  Such a person would offset the liberal justices who are overly sympathetic (a liberal tendency to assign victimhood) to the homosexual agenda despite not having a first-hand understanding of the homosexual experience.
Helena Loflin
8 years 8 months ago
I consider Elena Kagan "husband-free" and "child-free."  Lucky lady!
James Lindsay
8 years 8 months ago
2358 is a necessary sophistry, since without it the Church would have to admit that the natural occurrence of homosexuality is intended by God, as is the just exercise of sexual gifts. Without this sophistry, the Church would have to celebrate gay weddings.

Science rejects 2358, as does an honest appraisal of it using non-theistic natural law. Indeed, if one considers that God's entire motiviation for having natural law is human, rather than divine, hapiness, even a theistic reasoning must reject 2358 - at least for those who are mostly homosexual rather than those who are naturally bisexual (and even they should be free to chose the former).
Jim McCrea
8 years 8 months ago
Can't have one of them there lesbiterians on the Supreme Court!  We expect good old-fashined heterosexual men who cheat on their wives, have rent boys as baggage carriers, etc.
That's the Amurrrrrrrrriken way, doncha know?


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