Reading the link from the front page today to Newsweek's review of Elena Kagan's Supreme Court nomination, I learned that the right wing media evidently "won the week" by getting Kagan defenders to overreact to a subtle insinuation (via a photo of her playing softball, of all things) that Solicitor General Kagan might be a lesbian.
I've not been a supporter of Obama's choosing Kagan, but I don't see her nomination as doom and I don't expect her to be any worse than Breyer or Sotomayor on the Court. I respect Obama's prerogative to appoint whomever he wishes, within bounds, and Kagan is within bounds. What's done is done, and now I want to see her confirmed.
It strikes me that the sort of whisper campaign evidently being spread can be thwarted easily, immediately, and with fantastic consequences for the struggle for gay rights: Kagan should invite Senators to presume, for the sake of deciding whether to confirm her, that she is gay. She should show solidarity with the oppressed against the bigots.
This Ich bin ein Berliner approach would make for a devastating comeback.
Let me acknowledge my own history (irrelevant as it is in any larger sense) on this issue here:
I've weighed into the Supreme Court choices with two diaries over the past month, once arguing that Obama should appoint a lesbian to the Court not because the Court needed a lesbian in some affirmative action sense but because the two pre-eminent candidates in my opinion were Pam Karlan and Kathleen Sullivan, both of whom happen to acknowledge being gay, and I noted that their being lesbians might also have a positive effect on Court dynamics by widening the rift between Justices Kennedy and Scalia regarding gay rights. I've also posted a wistful diary complaining that the problem with Elena Kagan was not that she was bad, but that she wasn't as good as the alternatives.
The above diaries could lead to the inference that what I'm about to say is a sneaky way to see her nomination blocked. It isn't -- and readers may choose to believe that or not. This is about how to deal with the ugliness depicted in that Newsweek column and in so doing claim a victory for gay rights.
I start with almost an axiomatic belief that Kagan will be confirmed. This, seriously, does not seem to be in doubt. And so this "brave stance" I propose is not actually as brave as it might seem -- but it would still break ground.
What I'd like to see is for Kagan to make a statement along these lines:
Because I do read the newspapers, I understand that there is a widespread discussion right now regarding my sexual orientation. I believe that I can settle the matter today.
I believe that my sexual orientation is my own private business; as one who values the right to privacy, I will no more sacrifice my own privacy than I would someone else's. However, for the benefit of those who do seem to care so much about this issue, I will make it simple for them.
We law professors have a term that we use a lot in our teaching, the word "arguendo," or "for the sake of argument." We use this to test the important of certain rules or facts. Without conceding that something is true, we will ask our students to assume, arguendo, that something is or isn't true, and then ask them to analyze whether that provisional admission makes a difference. Often, the point is that something that we think is important turns out not to matter.
And so I propose this solution for those who are so deeply concerned about my private affairs: I ask Senators who are so disposed to assume, arguendo, that I am a lesbian. If they would vote for me otherwise, but would not vote for me if I am a lesbian, then I accept -- with great regret at their priorities -- that this means that they will vote "no." But if, given my qualifications, they would vote for me regardless of whether I am straight or gay or somewhere in between, then they don't need an answer to that question.
There have been in history and are this very day many women and men who are highly qualified to serve on the Supreme Court who happen to be homosexual. On their behalf, I want to break down this barrier to their service, this year. Let every vote to confirm me be a vote to confirm me regardless of my sexual orientation. If any Senator wishes to reject my nomination solely on the grounds of what I invite them to presume is my sexual orientation, let them justify it to themselves and the world.
A hundred years ago, it would have been unthinkable for me to serve on this Court because I am a Jew; thirty years ago, it would have been considered politically unfeasible to nominate me because I was a woman. Among the accomplishments in my life, whether I am confirmed or not, I will count high among them the destruction of yet another barrier to such public service. It is an honor to face this hurdle and it would be a larger honor to surmount it.
So anyone who wishes will make what presumptions they wish; I will focus on my qualifications for the position itself, which we like to believe is, and which should be, the only issue at hand. Accordingly, neither I nor the Administration will answer any more questions, even on background, on this matter, though of course every Senator may ask whatever questions he or she wishes, although they already now have my response.
Maybe, by the way, this would best be a speech adapted for the Senate confirmation hearings themselves, where "vote me down for this trait if you dare" would also be a fine riposte.
Now, if she also asked them to presume that she was an atheist or a convert to Islam, that would be even more impressive, but I would settle for one step at a time. If she is going to be attacked as a suspected lesbian, then let us all glean the benefits of her being confirmed despite being a presumed, though unacknowledged, lesbian. To quote another noted speech in Berlin: "tear down this wall!"