Answer the lesbian question, Ms Legal Eagle
Andrew Sullivan
From The Sunday Times May 16, 2010
The nominee to be the next justice of the Supreme Court has no opinion on anything. Well, that’s not entirely true. She did believe in providing free coffee for students when she was dean of Harvard Law School. She once publicly protested against the ban on honest homosexuals serving in the US military — but that is genuinely the only controversial statement she has ever made in public.
How do such people exist? Well, the truth is they have existed on the career ladder for the US Supreme Court since Robert Bork was crucified by the Senate when Ronald Reagan nominated him. Bork had written on everything, had opinions on everything and was a thoroughly interesting, even riveting, intellectual character. He was done in by the radicalism of his views on the limits of judicial power — and even, in some part, because of his religious agnosticism. It was a spectacle almost as ugly as Bork himself. And ever since, every judicial nominee has maintained an almost comic poker face when describing their views and opinions in front of the senators, who have the power to consent (or not) to their appointment.
But it is fair to say that nobody has been as blank a slate as Elena Kagan. Although she has been solicitor-general for more than a year, she has never been a judge, so it is impossible to examine her rulings and her reasoning. She has barely written a thing, despite being an obviously brilliant and accomplished legal mind. Liberals worry that she is another wimpy, namby-pamby Democratic nominee and no match for the firebrands of the right that the second Bush appointed. Conservatives worry that she is a stealth leftist, an almost textbook case of a left-liberal marching silently and stealthily through the institutions of American power. But the truth is: none of us outside her circles has a clue.
What we do know is that everyone in America’s legal and constitutional elite — a rarefied world that seems to include Yale, Harvard, Washington and not much else — thinks she’s the bee’s knees. Reading their quotes in the press this past week is like reading academic references for a Rhodes scholarship. Take this classic piece of blather from an icon of the liberal legal establishment, Walter Dellinger: “Her open-mindedness may disappoint some who want a sure liberal vote on almost every issue. Her pragmatism may disappoint those who believe that mechanical logic can decide all cases. And her progressive personal values will not endear her to the hard right. But that is exactly the combination the president was seeking.”
So Dellinger testifies to her “progressive personal values”. How does he know? Because he’s her friend. How are we supposed to know, when she has never articulated any such progressive values in, you know, public? Well, we just have to take Barack Obama’s word for it.
Jeffrey Toobin, the brilliant legal correspondent for The New Yorker, says he’s a close friend, but has no idea what her views are on anything. The New York Times ran a 4,500-word profile last week in which — again — not a single stand of any note could be discerned. The piece was full of anecdotes — she argued with her rabbi at her bat mitzvah, she left her car engine running in her garage overnight because she was so absent-minded, she smokes cigars, she plays softball — that were so artfully constructed to make her seem wonderful without revealing anything of any substance that another of the paper’s writers noted: “She seems to be smart, impressive and honest — and in her willingness to suppress so much of her mind for the sake of her career, kind of disturbing.”
There was one other strange thing about 4,500 words of profile — no mention of any private life. She is unmarried, and apparently has no anecdotes of dates, no ex-boyfriends or girlfriends, no romantic interludes ... nothing. In 4,500 words, we do not find out even where she lives or has lived or if she lives alone. (But we do know what her brothers do for a living — teaching). The far right has already identified her as a “lesbian homosexual”; and the gay blogosphere openly discussed her alleged lesbianism weeks ago.
But there is no confirmation of that anywhere and the White House reiterated last week that questions about sexual orientation “have no place” in judging a nominee (but her gender most certainly does). Quite how you defend this argument — from a president whose own criterion for nominees is a real experience of how law can affect ordinary people — is beyond me. It is also beyond most ordinary people out there.
If you type Elena Kagan into Google, you will get “elena kagan husband” and “elena kagan personal life” among the prompts for the most likely search terms. But my own attempt to inquire in as positive a way as possible last week — I’d be thrilled to have a gay Supreme Court justice — was simply ignored by the Obama press operation and smacked down elsewhere as an outrageous and unethical question. She is not only a blank slate as an intellectual and public figure; she is also a blank slate in other respects as well.
We are left guessing. The good news is that everyone has an interest in finding out; and we may have a set of hearings in which real questions are asked. In a rare moment of opining, she did once write that she found the hearings process since Bork oddly empty — and so she has opened herself up to a more rigorous set of questions than usual. She will, after all, assume a lifelong position with immense power. It is not crazy to ask questions that would help us judge how she sees the world and the law and the core issues of public moment she will have to address in the future.
My best bet is that she is quite hardcore in her left-liberalism but, like Obama, has managed to placate so many conservatives and independents on her way up the greasy pole that she will sail through. At Harvard Law School she hired many right-of-centre scholars, just as Obama engaged many right-of-centre thinkers at the Harvard Law Review. Never showing her hand, she wooed them with universal success.
Obama is answerable every day to the voters and to Congress and to the press. Once Kagan gets on the court, she will answer to nobody for the rest of her life. Better get some answers now, then, don’t you think? Or does that too “have no place” in such a process?
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