Kagan Gay Issue a Red Herring
Sexual politics commands passions in American political life far more powerful than those currently focused on Wall Street bankers or on BP. By conventional measures, Elena Kagan should sail through her nomination by President Obama to one of the most influential jobs in America — a seat on the US Supreme Court. If Obama had nominated a liberal, the right wing would be gleefully hunkering down for a battle royal, charging that Obama was putting up a fellow communist intent on trashing the US Constitution. But by any normal measure, Kagan is not a liberal. She’s a right-winger cheered by Republicans through her nomination to her current job as solicitor general.
As dean of Harvard Law School, Kagan made 32 tenure-track appointments. Twenty-five went to white men. Six went to white women, and one to an Asian woman. She didn’t hire a single black, Latino or Native American tenuretrack law professor. Several of her hires were prominent members of the right-wing Federalist Society.
The right is trying to raise dust about her running military recruiters off the Harvard Law School’s premises. Kagan did nothing of the sort. The recruiters were there, albeit without the school’s official imprimatur. Kagan objected to the Pentagon’s “don’t ask, don’t tell” policy on gays until it got judicial sanction, whereupon she gave an official imprimatur to the recruiters — a nice insight into the relationship of sexual politics to the US war machine. “Don’t tell” has been Kagan’s consistent policy regarding her beliefs and preferences, at least since that first photo of the youngster in judge’s robes, smoking a cigar.
Before she went to Harvard, she was President Clinton’s deputy domestic policy adviser, in which capacity she oversaw, among other assignments, welfare “reform,” kicking poor women, many of them single mothers, off the welfare rolls.
From 2005 to 2008, she was a paid adviser for Goldman Sachs. In those same confirmation hearings for the solicitor general’s job, she took the hard Bush- Cheney line that the world is a “battlefield” and kidnapping America’s presumptive enemies is just fine.
There’s zero evidence that Kagan would do anything to redress the right-wing tilt of the court and plenty that she might exacerbate it in the areas of executive power, civil liberties and assertion of presidential war powers.
But amid rumors that she might be gay, the Christian right is now saying that her true mission will be to swerve the US Supreme Court into overturning California’s Proposition 8 vote (that limits marriage to men paired with women) and into striking down constitutional amendments banning gay marriage in 31 states, most of which were the result of similar Proposition 8-type votes. Her right-wing assailants don’t openly hang their onslaughts on her possible gay preference. They say piously, in the words of Michael McManus of Marriage Savers, “What matters is not her personal life but evidence that she has elevated her pro-gay ideology above the law of Congress.”
Is there any such evidence? No. In her confirmation hearings for the solicitor general job, she was asked flatly, does she believe that there is a federal constitutional right to same-sex marriage? Her answer:
“There is no federal constitutional right to same-sex marriage.”
Is there any evidence she’s gay, beyond being single at 50, with that heavyish-set jaw and features that are familiar characteristics of many middle-aged lesbians? I could cite a student at the Harvard Law School when Kagan was dean who says her gay preference was taken for granted.
Last month, CBS News’ website featured a columnist, Ben Domenech, claiming that Kagan is gay. The White House — readying public announcement of Kagan’s nomination — went on red alert, lashing out at CBS’ “false charges” and telling the Washington Post that Kagan is not a lesbian.
Then on May 10, Andrew Sullivan, prominent gay commentator, posted an item on his Daily Dish blog, “So Is She Gay?” “It would be bizarre,” Sullivan wrote, “ to argue that a justice’s sexual orientation will not in some way affect his or her judgment of the issue, it is only logical that this question should be clarified. It’s especially true with respect to Obama. He has, after all, told us that one of his criteria for a Supreme Court justice is knowing what it feels like to be on the wrong side of legal discrimination. Well: Does he view Kagan’s possible life-experience as a gay woman relevant to this?… To put it another way: Is Obama actually going to use a Supreme Court nominee to advance the cause of the closet (as well as kill any court imposition of marriage equality)? And can we have a clear, factual statement as to the truth? In a free society in the 21 st century, it is not illegitimate to ask. And it is cowardly not to tell.”
So — diametrically opposite to the other rightwingers cited above — Sullivan is saying that Kagan may be a closet case and, like many closet cases, may tilt toward a repressive legal posture on gay rights.
Now, the traditional position of militant gays is that closet gays in public life deserve to be “outed” if they are pushing an anti-gay political or legal agenda. There’s a case to be made that Kagan may qualify for outing by that standard. But liberals are now rallying to Kagan simply because she’s under attack from the right — and even though her recorded political opinions are mostly terrible.
The liberal Nation magazine runs a headline this week, “Elena Kagan is not gay.” I seized it up, thinking to find persuasive evidence of heterosexual conduct on the part of Kagan. What this might be is hard to imagine since I doubt we’re in for a rerun of Monica Lewinsky’s stained dress, the most famous piece of apparel in America for a couple of years back in the ’90s when life was fun.
But no, the (gay) author of the Nation article, Richard Kim, takes cover in a postmodern thicket: “Gay isn’t some genetic or soulful essence; it’s a name you call yourself — and Kagan has not done that. So in my book, case closed. Elena Kagan is not gay. Is she straight? I don’t know, and again, I don’t care. Why does she have to have a sexuality at all?” Carried away by this theme, Kim added, “In a way, the mystery about her sexuality mirrors the mystery about her legal philosophy. We just don’t know a whole lot.” This is nonsense, but is now a position the progressives are adopting since we actually know a lot about her legal philosophy including her support for the theory of the unitary executive (a position popular in the Clinton White House as well as Bush- Cheney’s).
But liberals want to reinvent Kagan as a potential liberal martyr, as opposed to the chill neoliberal self-promoter she undoubtedly is. So where one could and should expect the liberal-left to be taking Kagan’s nomination as proof positive that Obama has destroyed the last-ditch rationale for voting any Democratic presidential ticket (“He’ll put a liberal on the court”), we can now expect — a la Kim — a call to the disheartened progressives to rally round Kagan and Obama, against a right-wing witch-hunt against homosexuals.
Alexander Cockburn is co-editor with Jeffrey St. Clair of the muckraking newsletter Counter- Punch. ‘ 2010 Creators.com