Ben Domenech at The New Ledger (and CBS):
Update: The White House has seen fit to take the effort to respond to my description of Elena Kagan’s sexuality, and Howard Kurtz asked me to comment. Here’s how I responded:
Since the position opened on the court, there have been abundant numbers of commenters and bloggers on the Left arguing openly about the potential political reactions of appointing either Sullivan or Karlan as the first openly gay members of the court. The idea of history-making appointments always has great appeal, and it’s one reason I supported Sonia Sotomayor’s nomination, a lonely position for any conservative — and when the first openly gay nominee is advanced, it will be a true statement about how far we’ve come as a society. When that does happen, it will be an issue of political discussion, whether we like it or not. It obviously has nothing to do with whether they are a good nominee or not [Note: Sens. Cornyn and Sessions are right on this].
I offer my sincere apologies to Ms. Kagan if she is offended at all by my repetition of a Harvard rumor in a speculative blog post. But if I were her, I’d feel pretty good about the fact that the White House specifically responded to this — it seems like a clue as to who the pick will be, doesn’t it?
1. Elena Kagan (49), Solicitor General of the United States. The likeliest candidate, and it was somewhat of a surprise she didn’t get picked last time.
Pluses: would please much of Obama’s base, follows diversity politics of Sotomayor with first openly gay justice (so would Karlan and Sullivan). [Update: While Karlan and Sullivan are open about it, I have to correct my text here to say that Kagan is apparently still closeted — odd, because her female partner is rather well known in Harvard circles.][Update: see my apology to Ms. Kagan at Huffington Post] Minuses: Seen as too moderate by some on the left; people like Arianna Huffington and Glenn Greenwald strongly dislike her because of her positions on executive power and anti-terror activities. Could be seen as a thumb in the eye of the civil liberties folks.
Sources numerous and equally dismissible report that President Obama has a “Top Ten” list of potential SCOTUS candidates to replace the outgoing John Paul Stevens. Since no one can honestly claim to know what the president is thinking, here’s my stab at his top ten (after conferring with a few TNL friends) as potential choices, with pluses and minuses for each. Trust me – you’ll want to stick around for the 10th.
Howard Kurtz at WaPo:
The White House ripped CBS News on Thursday for publishing an online column by a blogger who made assertions about the sexual orientation of Solicitor General Elena Kagan, widely viewed as a leading candidate for the Supreme Court.
Ben Domenech, a former Bush administration aide and Republican Senate staffer, wrote that President Obama would “please” much of his base by picking the “first openly gay justice.” An administration official, who asked not to be identified discussing personal matters, said Kagan is not a lesbian.
CBS initially refused to pull the posting, prompting Anita Dunn, a former White House communications director who is working with the administration on the high court vacancy, to say: “The fact that they’ve chosen to become enablers of people posting lies on their site tells us where the journalistic standards of CBS are in 2010.” She said the network was giving a platform to a blogger “with a history of plagiarism” who was “applying old stereotypes to single women with successful careers.”
The network deleted the posting Thursday night after Domenech said he was merely repeating a rumor. The flare-up underscores how quickly the battle over a Supreme Court nominee — or even a potential nominee — can turn searingly personal. Most major news organizations have policies against “outing” gays or reporting on the sex lives of public officials unless they are related to their public duties.
CBS unquestionably deserved to take a hit for this. But what’s more interesting than CBS’s role is the White House’s aggressive response. People who follow the ins and outs of nomination battles closely are interpreting it as a sign that Kagan has a very good shot at being picked. As one of these people put it to me this morning, this is the most hard-hitting pushback by the White House to misinformation being spread about any nominee.
A White House official told Kurtz that Kagan is not a lesbian. That won’t matter, of course; the whisper campaign from the right is likely to continue. But the White House has now signaled that they’re prepared to go to war against it.
Ben Domenech at Huffington Post:
I erroneously believed that Ms. Kagan was openly gay not because of, as Stein describes it, a “whisper campaign” on the part of conservatives, but because it had been mentioned casually on multiple occasions by friends and colleagues — including students at Harvard, Hill staffers, and in the sphere of legal academia — who know Kagan personally. And as the reaction from Julian Sanchez and Matt Yglesias shows, I was not alone in that apparently inaccurate belief.
Look, it’s 2010 — no one should care if a nominee to any position is gay. The fact that conservative Senators John Cornyn and Jeff Sessions have recently expressed openness to confirming an openly gay nominee to the Court is a good thing. Senators should look at things that actually matter — evaluating a nominee’s decisions, approach to the law, their judgment and ability — to see whether there are actually good and relevant reasons to oppose the nomination. That’s all.
But that’s about getting the job. As a political matter, there are ramifications for nominations to the Supreme Court, and the core elements of a nominee’s biography, like his or her family life, are inescapable when the nation focuses on such a high-profile life-tenured appointment. Making history is a noteworthy thing: many in the Latino community were pleased when Sonia Sotomayor (who I supported) was nominated, and many in the LGBT community would welcome the opportunity to confirm an openly gay justice. Glenn Greenwald and others agree with me on this point, and I can’t think why anyone would disagree.
That’s why I listed it as a positive: after so much frustration with the White House from the gay community on lack of action on other policy fronts, an openly gay nominee might serve to mend that strained relationship.
As I told Howard Kurtz, and I say again here, I offer my sincere apologies to Ms. Kagan if she is offended at all by my repetition of a Harvard rumor in a speculative blog post. It still seems odd to me that the White House would single out this statement for attack, adamantly slamming closed a door that nobody was trying to open, as opposed to issuing a mild correction. As Yglesias notes, “I’d like to think we’re past the point where saying someone’s a lesbian counts as a dastardly ‘accusation,'” and it certainly was not intended as such.
But on the other hand, if I were Ms. Kagan, I’d feel pretty good about the fact that the White House specifically responded to this, and did so in such an aggressive and forceful manner — after all, it seems like quite a clue as to who the pick will be, doesn’t it?
Sam Stein at Huffington Post:
Even before the CBS post, a top conservative religious group was already insisting that a nominee’s sexuality would play a major role in his or her confirmation process. This past week, the organization Focus on the Family abruptly reversed its position from the last Supreme Court confirmation battle by declaring it would oppose a gay Supreme Court pick, no matter who the nominee is.
“We can assure you that we recognize that homosexual behavior is a sin and does not reflect God’s created intent and desire for humanity,” said Tom Minnery, the group’s senior vice president. “Further, we at Focus do affirm that character and moral rectitude should be key considerations in appointing members of the judiciary, especially in the case of the highest court in the land. Sexual behavior — be it heterosexual or homosexual — certainly lies at the heart of personal morality.”
The fact that the rumor campaign surrounding Kagan has been settled doesn’t necessarily mean that the issue is off the table, Republicans still seem poised to make gay rights a prominent feature of the confirmation process — should she be chosen as Justice John Paul Stevens’ replacement. Already conservative websites are latching on to a brief signed by Kagan and 40 Harvard Law School professors in which they argued that the military’s “Don’t Ask Don’t Tell” policy was discriminatory against gay troops.
“Let’s just say that if somebody is gay, it clearly becomes political fodder,” said Navetta, when asked if the effort could damage Kagan’s chances for the court or confirmation. “And I’m not implying one way or the other that she is or is not [gay]. I’m just saying that its no myth that people’s sexual orientation can and does become an issue in political campaigns. We’ve seen it before.”
Having reviewed the completely voluntary decision of the White House to freak out over Ben Domenech’s mention in passing of now-probable USSC nominee Elena Kagan’s rumored sexuality – and before anybody freaks out in their turn, note this passage, please:
…one wonders what all the fuss was about. After all, Ben, Sanchez, Yglesias, Glenn freaking Greenwald – and for that matter, myself - are all more or less in agreement that a strong reaction to this is at least a bit odd. In a world where Senators Cornyn & Sessions can both readily and for the record state that sexual orientation is not a barrier for a Supreme Court spot, why would the White House jump on this issue with both feet? And why did they, by the way, do so in a manner that explicitly and authoritatively denies that Ms. Kagan is gay?
Everything I’ve heard is that Kagan is not a lesbian. Not that there’s anything wrong with being gay, obviously, or anything shameful in being called that. But I know far too many straight, single women who are assumed to be gay simply because they aren’t married or don’t have an active dating life. It’s hurtful to them, and not because they have any prejudice against gay people but because it’s an assumption about them that isn’t true. Everyone deserves to be seen the way they really are, whether gay or straight.
Marc Ambinder, a blogger for the Atlantic, wrote Monday about what he called “a baffling whisper campaign” about Kagan “among both gay rights activists and social conservatives. . . .“So pervasive are these rumors that two senior administration officials I spoke with this weekend acknowledged hearing about them and did not know whether they were true. . . . Why is she the subject of these rumors? Who’s behind them?”
Why? Because every woman who isn’t married after a certain age is assumed to be a lesbian by some people, even if she isn’t, especially if she doesn’t look like a fashion model. And social conservatives and gay rights activists (for different reasons) have a vested interest in her being seen as gay. It’s not an insult but it is a misconception and one that isn’t entirely benign to the person who is the subject of it. If she says anything publicly to deny it, it sounds as though she has a prejudice against gay people and if she doesn’t deny it, she becomes known as something she isn’t. It’s not fair.
Ben Domenech is right wing hit man and always has been. And he’s succeeded wildly here. The rumors are now “out there” and Cokie’s Law is in effect. How a known plagiarist came to be employed by CBS is the more interesting story, actually. Especially for a man who’s known to hire hookers to powder and diaper him and then sing him to sleep. Or at least that’s the rumor. Not that there’s anything wrong with that.
UPDATE: Andrew Sullivan
Joe Conason at Salon
Amanda Terkel at Think Progress
UPDATE #2: Ben Smith at Politico
William Saletan in Slate
UPDATE #3: Bill Scher and Matt Lewis at Bloggingheads
UPDATE #4: Scott Johnson at Powerline
UPDATE #5: Michael Kinsley at The Atlantic
UPDATE #6: Richard Kim and Reihan Salam at Bloggingheads