Ya know why having a lesbian on the Supreme Court might be a fantastic idea? For the same reason having a wise Latina could be: Because women like Sonia Sotomayor and Elena Kagan have experienced the type of institutional discrimination that white men simply can never fathom, and might be more keen to understand how the Constitution was set up to prevent crap like this. But for Kagan — who is not yet a self-confirmed lady-lover! — it also means her compassion for “gay” issues like Don’t Ask Don’t Tell could be quite an impediment to a confirmation.
Not knowing the email might one day come back to haunt her, Kagan sent, in October 2003, four months after taking over as Harvard’s Law School dean, a message to students and faculty about military recruiters coming to campus in violation of Harvard’s non-discrimination policies: “This action causes me deep distress. I abhor the military’s discriminatory recruitment policy. [… It’s] a profound wrong — a moral injustice of the first order.”
Her stance put Kagan squarely in sync with professors at Harvard and other law schools — and wholly out of sync with the Supreme Court, which later ruled unanimously that the schools were wrong. Four years after that ruling, Kagan, now the U.S. solicitor general, is a leading candidate to succeed retiring Justice John Paul Stevens. Conservatives have signaled that if President Obama nominates her, her stance on this issue — like perhaps no other in her career — dangles as ripe fruit that opponents would grab to thwart her confirmation.
As solicitor general, meanwhile, it is currently Kagan’s job to defend the government’s position in front of the Supreme Court. And had she held the job back in 2006, under George W. Bush, it would’ve been she defending the government’s right to send military recruiters. Which the Supreme Court approved, by a vote of 8-0.
How about we take this to the next level?
Our newsletter is like a refreshing cocktail (or mocktail) of LGBTQ+ entertainment and pop culture, served up with a side of eye-candy.
And if Kagan isn’t nominated to replace Justice John Paul Stevens, and the Log Cabin Republicans’ DADT lawsuit makes it to the Court before Congress repeals it? And the justices don’t turn it down like last time? It’ll be, yep, the job of Kagan to defend the discriminatory policy.
onCloud9
who is this woman? and is she a lesbian? guess that haircut gives her away…
Kyle
Her support for unrestrained executive power should come back to haunt her. Only Obama could find a right wing lesbian. We need a true scholar on the court like Diane Wood, Pam Karlan, or Harold Koh.
Michael @ LeonardMatlovich.com
Kyle is right that Kagan is someone all progressive gays should be fighting AGAINST being on the Court EVEN IF SHE IS GAY!
“The Huffington Post’s” Sam Stein wrote recently that the White House had “reached out to progressive allies” and asked them “to dismiss” articles written by Salon commentator Glenn Greenwald, a gay, former civil rights attorney, and winner of the Izzy Award named after famed independent journalist I. F. Stone, arguing against the selection of Elena Kagan for the Supreme Court. What has them so upset? Greenwald:
“Whatever else one might want to say about Cass Sunstein — or, for that matter, Elena Kagan — it is simply false to claim that they would fit within the so-called ‘liberal’ wing of the Court on matters of executive power and civil liberties. The replacement of John Paul Stevens could have a very radical impact on the Supreme Court, and it’s certainly not too early to begin combating pernicious myths about the leading candidates. . . .
When President Obama chose Sonia Sotomayor to replace David Souter, that had very little effect on the ideological balance of the Court, because Sotomayor was highly likely to vote the way Souter did in most cases. By stark contrast, replacing Stevens with Kagan (or, far less likely, with Sunstein) would shift the Court substantially to the Right on a litany of key issues (at least as much as the shift accomplished by George Bush’s selection of the right-wing ideologue Sam Alito to replace the more moderate Sandra Day O’Connor).”
Greenwald is no lazy hurler of ad hominems. He researches his opinions, and documents them with both biography and direct quotes by Kagan and others. If there is a colloquial, overarching theme it is that Kagan is the textbook example justifying judging someone by those who admire them:
“National Review’s Ed Whelan, a former official in the Bush/Cheney OLC and a far-right legal ideologue, lavishly praises Kagan’s record on ‘national-security and executive power’ issues.”
Greenwald quotes several “New York Times” articles, including this one:
“When Elena Kagan went before the Senate Judiciary Committee in February as President Obama’s nominee for solicitor general, Republicans were almost as effusive as the Democrats in their praise for her.
There was no daylight between Ms. Kagan, who was the dean of Harvard Law School, and Senator Lindsey Graham, Republican of South Carolina, as he led her through a six-minute colloquy about the president’s broad authority to detain enemy combatants. . . . Indeed, there was so much adulation in the air from Republicans that one Democrat, Senator Amy Klobuchar of Minnesota, joked at the hearing that she understood how Ms. Kagan ‘managed to get a standing ovation’ from the Federalist Society, a conservative legal group.”
Characterizing the Federalist Society as merely “a conservative legal group” is like saying the KKK simply did a lot of good for the white sheets industry. Two names: Bork and Scalia.
Graham, for those unaware, is, in addition to being rumored to being gay himself, is one of the most powerful, Cracker-voiced flame throwers for the Far Right and a tireless warmonger who has voted twice to amend the US Constitution to ban marriage equality, strongly opposes domestic partner benefits, voted against legalizing gay adoptions, strongly favors teacher-led prayer in public schools, has a 0% rating by the ACLU, HRC, & SANE; a 100% rating by the Christian Coalition & the National ‘Right to Life’ Committee, & an “A” rating by the NRA.
He asked Kagan:
“If our intelligence agencies should capture someone in the Philippines that is suspected of financing Al Qaeda worldwide, would you consider that person part of the battlefield? Do you agree with that?”
ELENA KAGAN: “I do.”
In other words, Kagan believes suspected terrorists/“enemy combatants” can be held indefinitely without charges and trial. [NB: OAG Eric Holder believes the same.] Kagan has “also agreed that an American citizen could be prosecuted for drafting a legal brief or writing a newspaper article in coordination with a banned group.” – LA Times.
In February, representing the Obama Administration before the Supreme Court in “Holder v. Humanitarian Law Project,” She said, “What Congress decided [in the Patriot Act] was when you help Hezbollah build homes, you are also helping Hezbollah build bombs. That’s the entire theory behind the statute.” – NY Times.
“[The HLP] say they want to provide support for the legal, nonviolent activities of a Kurdish political party and a Tamil group, both of which have been designated as terrorist organizations by the State Department. One plaintiff, Ralph D. Fertig, a retired lawyer, has said he wanted to help the Kurdish group, the Kurdistan Workers’ Party, find peaceful ways to protect the rights of Kurds in Turkey and to bring their claims to the attention of international bodies.” Ibid.
Ironically, it was the very Justice whom she may be nominated to replace, John Paul Stevens, who asked her, “if there was an authentic risk that Mr. Fertig would be prosecuted were he to make a presentation on behalf of the Kurdish group at the United Nations. He seemed to expect a negative answer. But Ms. Kagan would say only that the matter would involve a ‘prosecutorial judgment’.” Ibid.
My first personal opposition to Kagan was based solely on her betrayal of her own past legal protests against DADT. Greenwald’s research proves there are even greater, chilling reasons to oppose her, and I urge everyone concerned about whom Obama may nominate for the lifetime seat on the Supreme Court to read more at
http://www.salon.com/news/opinion/glenn_greenwald/2010/04/09/stevens
Greenwald has since added a lengthy, detailed deconstruction [read: shredding to bits] of the three articles defending Kagan that have appeared since the White House “reached out” at:
http://www.salon.com/news/opinion/glenn_greenwald/index.html
It closes with:
“I’m still waiting for someone, anywhere, to point to something about Elena Kagan that demonstrates commitment to anything other than her career ambitions and institutional loyalties. It’s very understandable why a President would want someone like her on the Court during his time in office, but that’s a far cry from making a case as to why progressives should consider her an acceptable choice to remain on the Court for what likely will be decades.”
Dave
GetEqual is getting a group together to yell at Kagan. That’ll show her. We yell at our friends now.