Short-haired justice

Kristin Flickinger

Does it matter if Elena Kagan is gay? Should it? It matters to me socially, but not judicially. Does it matter if she's in the closet? Maybe. I like honesty in my judges. Will it affect her ability to be confirmed? Probably. Whether she's gay or not, the implication will make this confirmation more difficult. In coded language, she will face a witch hunt.

In a time when a judicial nominee accused of showing empathy might find themselves disqualified, what happens when a nominee is accused of being gay?

Does it matter if Elena Kagan is gay? Should it? Kathy Belge is asking that question over at

Here's my summary: Does it matter if she's gay? It matters to me socially, but not judicially. Does it matter if she's in the closet? Maybe. I like honesty in my judges. Will it affect her ability to be confirmed? Probably. Whether she's gay or not, the implication will make this confirmation more difficult. In coded language, she will face a witch hunt.

For my full comments, and some good dialogue, head over and join the discussion.

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    Interesting that it doesn't mean anything judicially. Why did it mean something that Scalia was Italian, Sandra/Ruth/Sonia are women, and that people worried about a dominant Catholic influence?

    If being a "wise Latina" offers perspective that perhaps being a white male does not--and as long as we are assured for the forseeable future of input from white males on SCOUTS--then doesn't a homosexual perspective carry with it some of the same enlightening traits as being Hispanic, or Native American, or disabled, etc?

    I get that there is worry about Kagan's sexuality being used against her, but if bringing a new eye to the law is seen as a good thing, I think having a lesbian on SCOTUS would be a point in her favor, actually. For me, anyway. Not because she's gay per se, but because she's gay and we've never had anyone thinking about US law with that kind of power who was gay before.

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      Thanks Mark. It's a good point. I think you nailed it with "per se." Like I said over at About

      "Being a judge is not like being any other type of public official. People need to trust that their judges are evaluating every aspect of every case with detached professionalism. But expecting our judges to hide parts of their lives is expecting our judges to be less than human. And, like our President, I value the humanity and empathy of those who serve on our nation’s highest court. Qualities that come from the personal experiences they bring to the job."

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    I have no conern's about her sexuality and fail to understand why it would be a potential issue except for those on either extreme who would use it as a club against her or against those who would question her judicial fitness.

    I would be far more concerned that her appointment means that the entire court is staffed by graduates of just two law schools.

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    I am a little concerned.

    [Editor's note: Off-topic discussion removed.]

    For another, why are politically progressive women increasingly vulnerable to whisper campaigns?

    It's one thing to praise strong and powerful women, seek for an identity, and yearn for affiliation. It's another to wade into this homophobic riverbed.

    I got my nice shoes on. I'm not going anywhere near that water's edge.

    I hope other who find consolation in Kagan's alleged sexual deviancy won't so easily grant opposition the premise of their attacks.

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      [Editor's note: Off-topic discussion removed.]

      Second, discussion of whether a person's sexual orientation should matter is not the same thing as whispering about whether it's true.

      Third, "deviancy" is also a nasty, nasty word. I hope it didn't dirty your nice shoes.

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        [Editor's note: Off-topic discussion removed.]

        I am gay as the day is long. Until the day comes when it becomes expected or normal for a child to grow up gay, please, tell me, Kristin. Are you upset that I used the word "deviancy" and not the poisonous the whisper campaign with ugly, ugly premises?

        This is perhaps uncouth, but I am still incredibly upset that some unfeeling, unconscionable man decided to turn a Supreme Court nomination into a whisper campaign.

        And, yes, I don't know whether asking how being gay affects jurisprudence is contributing to whisper campaign to raise suspicion of Elena Kagan's sexuality.

        I think it's an affront to lesbians suggesting credibility, professional integrity, and experience can be invalidated in the public for being gay. I think it's an affront to feminists because it suggests that if you're not married, it's no problem. It just means your gay.

        We're all different. Kristin, you may simply be more comfortable with the whisper campaign than I am.

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          Words are important, as we all know. I simply find it interesting that, in the same breath that you say you are unwilling to sully a nomination with talks of someone's sexual orientation, you use a word that sullies that very orientation.

          Yes, I know what "deviancy" means. I also know that it has a certain feeling about it. Not a good one.

          In my mind, it is normal for a person to grow up gay. Is it how the majority of people will grow up? No. Does that make it different than the statistical norm? Yes.

          But, referring to someone's orientation as a "deviancy" adds logs to the fire. It conjures images of depravity and predation.

          As for the whisper campaign, I agree that this type of witch hunt has been used for far too long to invalidate the superb qualifications of women seeking any range of positions in the political sphere and elsewhere. Challenge the legitimacy of the whispering if you will. I think it's time we challenge the legitimacy of the premise that her orientation is a disqualifier.

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            Well said. The entire premise is flawed (that being a non-heterosexual should in any way be a disqualified) and as Mark noted up-thread, should, if even in small measure, be seen as net positive thing to bring a wider perspective and new set of eyes to issues in the public sphere.

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              I just think if you (editorial you) were interviewing for a job, would you find it a little disarming if someone asked you had a husband or if you were straight? I think you'd agree. I think we'd all call this an irrelevant, prurient interest and inappropriate.

              I'd also like to believe a lesbian would have an easier time empathizing with the different kinds of employment discrimination. Not saying that Elena Kagan would be that lesbian.

              And to Mark. You suggest the left is the source of this story, I have absolutely no problem suggesting leftists or Democrats can be homophobic. None. None at all.

              Evan Bayh, Clare McCaskill, and Thomas Carper all stood by in the wings giving no initial public support to Jeff Merkley as he introduced ENDA. The fear of supporting language supporting provision protecting the trans community is equally troubling.

              These stories about Elena Kagan could be an exception to the general outward support from the left, but real friends are honest with one another. I don't think this is a benign human interest story.

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    Is there a glitch in the system somewhere? Why are there so many anonymous comments suddenly?

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      Mel, there are two reasons why you might see a comment that appears to be anonymous:

      <h1>1. The individual whose comment it is has blocked you, personally, from their facebook profile.</h1> <h1>2. The individual changed their privacy settings AFTER posting their comment.</h1>

      You can't post a comment if you're anonymous, but if you change yourself to anonymous after you've posted, your name disappears. At that point, however, you lose access to BlueOregon.

      With all the recent attention paid to Facebook's privacy policy, we're seeing a bit of a rash of that.

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        Thanks, Kari, for the explanation. As I now see names/pics for those who I didn't before, I'm guessing #2 was the reason and they changed settings again to regain access to BO.

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    Yes, it matters she's gay. I've never met a gay person that doesn't understand that privacy is a necessary social right, not a privilege to be doled out by the State. I've wondered if Sutter is in the closet, as he has been the lone voice defending it in the past. She's definitely needed to shore that point of view up within the court.

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    Being a non-heterosexual on the court might make said justice much more cognizant on a personal level how non-heterosexuals are denied equal protection under the law as should be guaranteed under the 14th amendment.

    But beyond that, a persons sexual orientation as a jurist is pretty much a non-factor, other than in the sense that bringing a long-missing perspective to the bench is on balance usually a good thing.

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    Is it my imagination, or does it seem to be the left that is raising questions about Elena Kagan's sexual orientation, not the right? I just saw a brief episode on MSNBC over the noon hour that sure makes it seem like it.

    For example, some gay rights advocates are saying that the Wall Street Journal, by showing a 15-year-old picture of Kagan playing softball, was "obviously" raising questions about her sexual orientation. Huh?

    And many of the posts above are talking about what an advantage it would be to have a gay, or at least "non-heterosexual," justice on the court.

    It is my understanding that Elena Kagan has said she is not gay but in any event has not chosen to make her sexual orientation an issue. I hope the alternative to "don't ask, don't tell" doesn't become "We can ask and you have to tell."

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      MSNBC is not "the left".

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        And Fox News is not "the right." But until the Nation and Human Events start their own cable news networks, MSNBC and Fox News will represent the left and right wings of the electronic media to me.

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          I disagree. Fox is the right. Your premise is an entirely false equivalency. It is analogous to comparing someone who jaywalks to Al Capone and calling them both equal indicators of a crime wave. There is no left counterweight to Fox News (aka the GOP talking points network) on the left. To claim otherwise is simply not even close to an honest assessment of the topic.

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            I'm afraid your own bias is showing, Mitchell. Listen to Keith Olbermann's nightly name-calling of Republicans with your partisan chip turned off (if it has an off-switch) and I think you will reach a different conclusion.

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              It should be becoming apparent that Mitchell and I share no common biases, and I think it's patently absurd to say that Fox News is not "the right". MSNBC is clearly friendly to the left. It sounds like you're saying that we can't expect much and should consider those crumbs our fair share.

              Because name calling buffoons devolve into carping on each other doesn't make them advocates for a competing point of view. It's really disturbing how much Democrats have started equating "not whatever" with being "positively something else" in every discussion. Our Iraq policy doesn't really suck, because it's not Bush's (or so we are still promised). The HCR is good medicine because the alternative is killing people with negligence. Clean coal is good because it's not dirty coal and it's not somewhere else. China is a good ally because North Korea is such a menace. Sam is a good mayor because his every thought isn't of commercial development. Cars are good if they don't burn gasoline. Fighting in Afghanistan is good because fighting here is unthinkable. Obviously I could go on forever.

              A choice between the lesser of two evils is still choosing to do evil. Trying to appreciate MSNBC as liberal representation in the media requires more Mae West than I have in me. "When I'm confronted with a choice of two evils, I try to choose the one I've never tried before". Yuck.

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                Okay, John, among Keith Olbermann, Rachel Maddow and Ed Schultz, which is not on the left? Chris Matthews, who used to describe himself as "right leaning" when that was popular, now openly describes himself as on the left.

                The only person not on the left who is still on MSNBC is Joe Scarborough, who is on in the early morning with Mika Brzeznski, the daughter of Jimmy Carter's National Security Advisor.

                Several years ago MSNBC made a conscious decision to become the Fox News for Democrats and the left. To pretend there is a distinction between the two in terms of their partisanship or ideological commitment is naive.

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              And the Fox News equivalent of "Morning Joe" is what, again?

              Yes, Keith Olbermann is a raving liberal. That doesn't make MSNBC anything like the equvalent of Fox News.

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    Okay, this is an awesome video regarding Elena Kagan playing "softball". Oh, you know what I'm saying.

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      There are thousands of competitive girl's softball leagues in this country. I'm really dreading the inevitable story yet to come, about some Church school banning the local girl's softball team from using their facilities.

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