Lesbian issue overshadows Supreme Court nominee

Sexual politics command passions in American political life far more powerful than those currently focused on Wall Street bankers or on BP, trying to finesse what promises to be the largest oil spill in history.

If not for the speculations over her sexual preferences, 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 gleefully have hunkered down for a battle royal, charging that Obama was putting up a communist intent on destroying 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 tenure-track law professor. Several of her hires were prominent members of the right-wing Federalist Society.

Before she went to Harvard she was Clinton's deputy domestic policy advisor, in which capacity she oversaw, among other assignments, welfare 'reform', which kicked poor women, many of them single mothers, off the welfare rolls.

From 2005 to 2008, she was a paid advisor for Goldman Sachs. She has taken 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 rumours 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 which limits marriage to a man and a woman, and into striking down constitutional amendments banning gay marriage in 31 states, most of which were the result of similar Prop 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, "Do you 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 heavy-ish set to jaw and features that is a familiar characteristic of many middle-aged lesbians? I could cite a student at the Harvard Law School when Kagan was Dean of Harvard Law School who says her gay preference was taken for granted. Other "friends" have been quoted as saying she dated men.

Last month the website of the CBS News network featured a columnist, Ben Domenech, claiming that Kagan is gay. The White House - readying the public announcement of Kagan's nomination - went on red alert, lashing out at CBS's "false charges" and telling the Washington Post that Kagan was not a lesbian. Then on May 10, Andrew Sullivan, the prominent gay commentator,  posted an item on his Daily Dish blog, titled "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 21st Century, it is not illegitimate to ask. And it is cowardly not to tell."

So - diametrically opposite to the other right-wingers cited above - Sullivan is saying that Kagan may be a closet case, and like many closet cases will tilt towards a repressive legal posture on gay rights.

Now the traditional position of radical 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 opinions are mostly terrible.

The liberal Nation magazine ran a headline this week, "Kagan is not gay". I seized on it, expecting to find persuasive evidence of heterosexual conduct on Kagan's part. (What this might be is hard to imagine, since I doubt we're in for a rerun of Lewinsky's stained dress, the most famous piece of apparel in America for a couple of years back in the Nineties when life was fun.)

But no, the (gay) author of the Nation article, Richard Kim, took cover in a postmodern thicket of his own devising: "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 liberals and left are adopting, since they want to reinvent Kagan as a potential liberal martyr, as opposed to the chill right-wing self-promoter she undoubtedly is.

So where one could and should expect the liberal-left to be taking Kagan's nomination as the final proof positive that Obama has destroyed the last-ditch rationale for voting the Democratic 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. ·