Elena “who am I?” Kagan

I wasn’t sure what I wanted to say about Ms. Kagan when I first heard the news of her nomination.  There were several of my colleagues, fellow law students, unhappy with President Obama’s choice.  I got the impression it was a combination of her lacking judicial experience and, assumed, moderate politics (though honestly, I didn’t ask).  I was happy to see a public official, and not a judge, under consideration for the Court, but didn’t think much about it beyond that. (Final exams were sufficiently distracting).

Without doing much research, I tried to determine the overall consensus with her nomination.  In reading headlines, listening to podcasts, and catching a few random clips on television, there are two main themes which are being mentioned by one side or the other.

First, there were criticisms that she does not have strong opinions or has not established herself on many issues. Brooks mentioned it.   The mainstream media seems to want it both ways.  When a candidate speaks their mind or a public official has strong, vocal beliefs, they cannot be considered for the high Court.  They are too dangerous, too risky and could never be confirmed by the Senate.  They are dismissed before even being considered.  When a candidate spends their entire adult life managing their comments and preparing for a series of Senate confirmations, they have no opinions and no one should trust them.  It seems to me that Elena Kagan is exactly what a media culture produces.  Her brilliance and intelligence are beyond question.  Yet, she knew from 22 years old that she would be answering questions before the Judiciary Committee on several occasions.  It feels like a lose-lose situation.  If she writes too much or speaks too much, she could jeopardize her nomination.  If she doesn’t say enough, “we” don’t know what she actually believes.

Second, there is this odd discussion of her sexuality.  I use “odd” intentionally, because I had trouble deciding what occurred – her allies insisting she wasn’t gay or her opponents trying to tip-toe around the subject and imply without implying that she is.  Either way, it is fully in the national discussion now. Maureen Dowd wrote a great piece on this subject yesterday and I suggest everyone check it out.  (Perhaps I should start reading her more often).  Here’s the thing.  It’s hard to give liberal writers and bloggers credit for defending her on this issue when they began addressing it even before I heard anyone bring it up. In some places, it was almost like the assumed bigotry was preempted even before it could reveal itself. I’m not sure if that’s good, bad or sad.  Even worse, several writers took the bait and wrote about it anyway. (For a good response piece that did wait for criticism before responding, see this Daily Beast blog).

So, do we care? Let’s say she is a homosexual, open or otherwise.  Does that change anyone’s opinion of her nomination?  I suspect it really doesn’t unless you are a United States Senator.  Those Americans who disagree with her politics, are likely to continue to disagree with her regardless.  Those Americans who either support her because they are familiar with her resume or because they trust President Obama, are likely to continue to support her nomination.

There are many Senators, however, who may find themselves in a difficult position with their constituents or party if she were openly gay and they confirmed her.

My opinion is that while it shouldn’t affect the nomination process, it clearly would (or maybe already has).  Just like a Senator wouldn’t ask her if she’s had an abortion, we shouldn’t be asking her about singularly personal issues.  Some may say that her sexuality plays into public issues such as the debate surrounding civil unions and gay marriage.  That’s why the Senators are allowed to ask her about her position on gay marriage as it pertains to the values and laws of the United States, just like they’d ask her about her position on Roe v. Wade.  Just like there’s a difference between her position on Roe v. Wade and her reproductive history; there is a difference between her position on gay marriage and her sex life.  I think it is a line that we don’t need to cross.

Let’s respect her life and accomplishments, listen to what she says (or doesn’t say) in front of the Senate, and make our decisions based on actual fact and not assumptions or presumptions. Nah, that won’t drive “clicks” to anybody’s website.  Nevermind.

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