(REAL TIMES MEDIA)—By now you have likely heard that Barack Obama has selected Solicitor General Elena Kagan to be his nominee for the Supreme Court vacancy left open by retiring judge John Paul Stevens. Stevens was a liberal stalwart on the court, and the perfect foil to the rightward lurching of the Supreme Court under eight years of the Bush administration. We’ll be lucky if Kagan is half as progressive. In fact, the only hope that the public has that her nomination will balance out the court rather than be another squishy moderate, is if it turns out that she really is a lesbian.
An NFL coach wouldn’t praise their new quarterback by talking about how much the other teams liked playing against him. They’d say that the guy was great because he gave opposing defenses nightmares. Yet when Kagan was announced, White House talking heads made a point of touting her support from such Republican luminaries as Ken Starr, her standing ovation from the far right Federalist Society and her intense efforts to recruit conservative faculty at Harvard Law to create “balance.” Even with 59 guaranteed Democratic votes in the Senate, Obama has gone out of his way to select a nominee to please Republicans who won’t vote for her anyway.
More importantly, Kagan’s record demonstrates that same self-serving Hillary Clinton era liberalism that has been the slow death of progressives since the late 1990s. The kind of moderates who claim empathy towards the plight of the downtrodden or locked out but at the same time make no efforts to initiate change until it affects them personally. During her tenure as dean of Harvard Law School Kagan oversaw the hiring of 32 new tenure track faculty members, only one of whom was a minority. Considering that the minority population at the school is 29 percent, her inability or refusal to recruit and retain minority faculty to teach them speaks volumes about her credibility and sincerity on issues of diversity, unless those diversity issues affect her personally.
I’m not going to tiptoe around the rumor that Elena Kagan might be a lesbian. It is a relevant discussion and likely has policy and legal implications. The single greatest public policy decision made by Elena Kagan was her stance against military recruiters while dean at Harvard. Kagan led the charge to ban military recruiters on Harvard’s campus because at the time the military did not allow gays to serve openly and freely in the armed forces. The banning of the military on a prestigious campus is a pretty courageous and controversial act, and clearly the type of courage that Kagan felt like demonstrating for gay rights but not when it came to diversifying the faculty. Many pundits including openly gay Atlantic Monthly blogger Andrew Sullivan have questioned Kagan’s sexuality. Beyond the military ban, she’s a single 50-year-old woman with no kids and way too many people coming out of the woodwork trying to “prove” that she’s dated men at some point. Most 50-year-old lesbian women have dated a man at some point in their lives. That doesn’t mean she’s not gay. And this isn’t a sexual witch-hunt either. A single man in his 50s with no kids, no ex-wives and a “dating life” shrouded in mystery would get attention too, and that happened to David Souter when he was nominated by George Bush in 1990.
This point, however, is this: Kagan’s sexuality is a legitimate question during private or public nomination discussions, just like someone’s marriage status, friends and associations. Not as an excuse to stop her nomination but because if she were a homosexual judge perhaps she might bring a fresh perspective to impending court cases on gays in the military, gay marriage and sexual discrimination suits. Heck, her being gay might be the most progressive thing about her, and might demonstrate that Obama has a liberal bone is his body after all.
After eight years where George Bush butchered the U.S. Constitution and selected justices that will actively move the nation further to the right, Obama had the opportunity to create some balance on the court by replacing one of the longest standing liberals with another liberal or at least a progressive to battle Scania and Thomas. Instead he chose another meandering moderate, whose progressive credentials might only extend as far as her personal life is being affected. At least I hope so, because otherwise he just wasted a lifelong appointment on another soulless bureaucrat.
(Dr. Jason Johnson is an associate professor at Hiram College in Ohio.)