Solicitor General Elena Kagan, the is-she-or-isn’t-she-a-lesbian former Harvard Law dean, still seems among Obama’s likely picks for a Supreme Court justice. But if she gets before the Senate Judiciary Committee, you can bet that her butch haircut, homo-sympathy, tits, and snooty liberal elitism will be an issue. But who says dykey attributes have to be flaws that’ll keep her from becoming our first lesbian-y justice? Let’s see how she can turn some of them into advantages.
Though she hasn’t publicly commented on her sexual orientation, she’s got short dykey hair. And while being gay is “not a particular issue” with Judiciary Committee member John Cornyn, that’s only “as long as it doesn’t interfere with their job.” That is, as long as she doesn’t vote in favor of them queers.
She’s already called DADT “a profound wrong” and “a moral injustice of the first order” while serving as Dean of Harvard Law School, so Republicans will pounce on that and paint her as the very ideologue that Cornyn wants to avoid.
They’ll also ask her about gay rights during the confirmation hearings, but like Sotomayor, she doesn’t have to tell. After all, Justices don’t typically comment on issues that could come before the Court, the the Supremes’ fall docket upcoming docket is full of these. Nominees need to maintain an air of impartiality and not get locked into a corner by previous statements.
Kagan’s ultimate defense? Continue not acknowledging anything about her sexuality, letting the White House fight that battle. Then it’s up to Republican senators to point their finger at Kagan and ask, “Are you one of them?” Do they have the balls?
Though this country has seated over 40 Supreme Court justices who never served as judges before ascending to the highest court in the land, the last non-robe was 1972. His name was William Rehnquist. The trend has certainly changed in the last 40 years. Even the typically liberal political blog Firedoglake argued, “Elena Kagan is so terminally inexperienced with the American court system as to be unqualified to serve… Her first appearance in the Supreme Court as Solicitor General, little more than six months ago, was the first time she had substantively appeared in any court.” Glenn Greenwald, the influential Salon gay, has a whole host of reasons why Kagan shouldn’t be considered, like her lacking record on where she stands. (Yes, even liberals should fear unknowns.)
But it’s not a total strike against her. In her favor, having no judicial record means that she doesn’t have to worry about any past rulings being politicized during her confirmation hearings. Also, her role as the solicitor general means she’s already established a rapport with the current Justices — namely, they don’t like her, which isn’t necessarily a good or bad thing. And even though she argues cases on behalf of the United States government, her casework doesn’t reflect her opinion. After all, it’s not like she gets to decide her cases. As solicitor general, she has to defend the administration’s stances and is ethically bound (as all lawyers are) to zealously represent whatever client they have, even if they strongly disagree with their positions.
Appointing Kagan would turn the court’s religious make-up into six Catholics and three Jews. There have only ever been seven Jewish Justices (including sitting Justices Ginsberg and Breyer). With Stevens retiring, Above the Law points out that “Protestants could wind up with no representation on the Court in a nation that is predominately Protestant.” (On the flip side, it could end up having more women on the court in a nation where they make up the majority, so there’s that.)
Americans tend to think that if their sub-group is not represented in a political body, nobody will fight for their interests. But a Catholic Justice doesn’t mean a sure vote against abortion anymore than black Justice Clarence Thomas means a sure vote for affirmative action (something he’s voted against in the past). And of course, Kagan isn’t a sure bet in favor of LGBT issues.
There have only been three female Supreme Court Justices: Sandra Day O’Connor, Ruth Bader Ginsberg, and Sonia Sotomayor. And while we should certainly strive for greater gender equality while seating the best qualified candidates to the bench, Justice Sotomayor got slammed for not only calling herself “a wise Latina” but “a wise Latina woman.” Make no mistake, female identity is also a contentious issue and you can expect the hearings to focus on abortion rights in particular.
Though, like religion, gender is no indication on how she might vote in a case challenging Roe v. Wade or any other suit dealing with lady parts. Take Planned Parenthood v. Casey for example. Justice O’Connor upheld the right to abortion, although with certain caveats that made it harder for women to get certain types of abortions. That made some women upset at a fellow woman. The audacity.
Ask any Tea Bagger about the H-word they’ll likely tell you that it’s a skool for librul elites — even though many political conservatives at every level of office are Harvard and Yale grads themselves.
But Kagan proved one hell of a manager as dean there. She used consensus-building to help construct new facilities, made numerous prominent hires to its faculty, and raise $476 million in a five-year fundraising campaign, surpassing the school’s goal by a cool $76 million. So, the theory goes, she could use her diplomatic management style to help build consensus among Justices during contentious deliberations, which is an important factor for Obama to consider given the conservative-leaning court.
More important might be to look at a law review article she authored in the 2001 Harvard Law Review entitled “Presidential Administration.” In it, she calls for expanded presidential powers such as executive orders and signing statements.
Executive orders and signing statements are small-r republican maneuvers. That is, we live in a republic where elected officials make policy decisions and not a democracy where we get to vote directly on everything like health care. And so Kagan might support future presidents having more unilateral directive, which can cut both ways. After all, while a president’s executive order isn’t exactly law, it can’t be easily overturned and can set bad precedent. Would you want another Bush-like president having expanded presidential powers because Kagan & Co. say so?
Kagan quit her post Harvard Law School dean in 2009 to become Obama’s solicitor general. Conservatives, then, will undoubtedly try to paint her as Obama’s crony, the same way that Bush’s short-lived Supreme Court nominee Harriet Miers got the same billing. And while both Kagan and Miers have no judicial experience, Kagan has more direct experience with the Supreme Court than Miers ever did. Of course, Miers’ nomination was sunk, so separating Kagan from Obama’s cool kids posse would be a wise strategy.