Political InQueery: She's Got to Be Something, Right?

Everett Maroon
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Everett Maroon is a memoirist, essayist, and fiction writer originally from New Jersey and now living in Walla Walla, Washington. His blog is transplantportation.com and he tweets at @EverettMaroon.

Obama, Biden, Kagan make announcementRegardless of which person the President would have selected for Associate Justice of the United States Supreme Court, I would have been interested. I am curious to see what floats around in the ether (read: debate) around present-day nominees, and given the interest by many in the makeup of the court, I want to keep tabs on the rhetoric around this specific nominee. Especially since she's an ex-gay.

Just kidding. The never gay-friendly Parents and Friends of Ex-Gays (PFOX) has concluded that Ms. Kagan must be an ex-gay because she doesn't give any comments about her sexual orientation. Washington DC's City Paper looked at and deconstructed PFOX's argument. But what this accusation says to me is that there isn't a lot of easy ground from which to throw pot shots at Kagan. She's no Harriet Miers.

Early on, after the nomination announcement but before the hearings, the margins of the framing for Kagan as Newest Jurist looked like this:

The rhetoric around her nomination from Senators, I presumed, would be different. Overlapping a bit of this frame, yes, but it seems to have focused in the additional areas of "will she be an activist judge," "will she throw the balance of the court to the left," and "will she insist every woman have an abortion every time they get pregnant?"

To take these in order: no, no, and no, of course not, you anti-choice lunatics.

On Monday, Kagan gave an opening statement. (Transcript)

Let me just say first that she didn't balk at the "under God" part of her swearing under oath, but she didn't swear it on a bible, either. And she did wear a Hillary shade of blue for her ensemble, so she's got some teeth, people. But okay, I should pay attention to the content, not the style. I'll try not to just look at those two black buttons the whole time she's talking.

Next she mentions Senator Byrd's passing. My partner had remarked to me on Monday that he's going to be a hard man to eulogize, what with his previous membership in the KKK, bound up with his long list of Democratic bills sponsored and passed. So I held my breath when she brought up his name. What the BP oil disaster gave in lowering the media pressure off her, would Byrd's death take away?

She swivels her chair like an expert to show off the galley of folks behind her who know her and who came to the Hill with her to support her. Senator McDonnel, these people are watching you like a hawk. So don't try anything nasty.

Now to her parents, the strong father, the determined mother who didn't speak English until she went to school. I call that a failing of the local Kid Care pre-school, sheesh. Dad grew up to be a lawyer, while Mom and her two brothers became teachers. She mentions her parents were immigrants. Legal immigrants, I suppose. But in the trite generalizations there is this: Kagan wants America to support opportunities for individuals. This is notable to me, because the Court has been drawing new lines between Federal and states' rights, and Federal and individual rights since its shift to the more conservative side of the political spectrum. Just this week they sent down their ruling about Chicago's gun control laws—saying the handgun ban in Chicago was "unenforceable," they used their reading of the Constitution to pull at the already unraveling string on gun limit policies. If opportunity means growing up in a community free from handgun violence, will Kagan see opportunity for people from her seat on the bench?

She says she is only sorry that she won't get to serve with outgoing jurist Stevens. In rounding up his very fine qualities, she includes his "independence" and adherence to the rule of law. Is she saying that she'll be principled but wants to be free of how others think she should vote? I think so, because she goes on to say that she'll approach each case with an open mind and render each case impartially. While I don't personally believe in impartiality, I get what she's saying. She does not want to be pigeonholed here. I should go back and read Robert's opening statement, because I'm guessing it is similar on this level.

Kagan thanks Sandra Day O'Connor and Ruth Bader Ginsburg for the kindnesses they have shown her and for the opportunities they've given women in the law. That's nice. And also a reference to supporting opportunities for people. Hmm.

She believes that the rule of law is to provide us liberties and freedoms, and just for good measure, throws a little term—equality—in there, almost like kindling. Now she gives us her philosophy of the Court: 

And what the Supreme Court does is to safeguard the rule of law, through a commitment to even-handedness, principle, and restraint.

I can't imagine that Thomas and Alito like hearing that. But Roberts and Scalia probably smile at the liberal's challenge. In my version of the universe, anyway.

In talking about her clerkship for Thurgood Marshall, she says:

. . . the Supreme Court stood as the part of government that was most open to every American — and that most often fulfilled our Constitution's promise of treating all persons with equal respect, equal care, and equal attention.

She's not just saying that the Court is indebted to giving the opportunity to redress problems for every person, but that the Constitution itself acts as a protector for Americans. I like the clever ways she's attached her philosophy to other great liberal leaders on the Court. Not that it will deflect a shred of scrutiny during the rest of the nomination process, but it's elegant all the same. 

Now a bit of equal under the law shenanigans that nobody believes anymore. If I get stopped for speeding I'm not also going to get investigated for being an undocumented worker or shot for pulling out my cell phone, okay? But okay, it's nice talk to the Senate committee. We Americans love hearing how bloody equal we are.

She closes out on an academic's take on everything from the Court to democracy itself:

I've led a school whose faculty and students examine and discuss and debate every aspect of our law and legal system. And what I've learned most is that no one has a monopoly on truth or wisdom. I've learned that we make progress by listening to each other, across every apparent political or ideological divide. I've learned that we come closest to getting things right when we approach every person and every issue with an open mind. And I've learned the value of a habit that Justice Stevens wrote about more than fifty years ago — of "understanding before disagreeing."

I will make no pledges this week other than this one — that if confirmed, I will remember and abide by all these lessons. I will listen hard, to every party before the Court and to each of my colleagues. I will work hard. And I will do my best to consider every case impartially, modestly, with commitment to principle, and in accordance with law.

My mind tells me that some positions are more just than others, that some political tactics are indefensible, and that sometimes there is no way to bridge the divide between opposing views. But I'll give her the opportunity to talk about being impartial, because I know that's what the Senate GOP wants to hear if any of them are going to vote for her.

And I'm sure we'll get back to the ex-gay thing very soon.

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8 Comments Have Been Posted

I think her hearings have

I think her hearings have been really solid so far. She's a tough nominee to discredit.

Also, it's been pretty weird seeing Thurgood Marshall regularly derided by Republicans. He was one of the most heroic people in American history.

<i>"With Kagan's confirmation hearings expected to last most of the week, Republicans may still have time to make cases against Nelson Mandela, Mother Teresa and Gandhi."</i>


Is Elena Kagan A Closet Neocon?

i watched the majority of the Senate Judiciary Committee hearings on Supreme Court Nominee Elena Kagan. At first i had the impression that she would be an open-minded jurist. Perhaps she still will be. There were parts of the hearing that were, of course, laughable, i.e.: Senator Charles Grassly having his first round of questioning on a paper she had written before she ever went to law school. She gave the impression the she was merely doing the best job she could for whomever she was working. Going into the hearings, having read some of her papers i thought she would be pro-privacy and was concerned about her views with respect Habeas Corpus. Did i hear right that she supports the Defense Of Marriage Act (D.O.M.A.)? i hope not. What <b>REALLY CONCERNED ME GREATLY</b> was that she said that as a Supreme Court Justice, she wouldn't take into account "natural law" or the part of the Declaration of Independence that says that our inalienable rights, among others, include life, liberty, and the pursuit of happiness. Supreme Court Justice John Paul Steven recognized the correlation between the liberty clauses of the Fifth anf Fourtheenth Amendments and the liberty clause in the Declaration of independence. i was <b>ABSOLUTELY AGHAST</b> when Elena Kagan said that there had to be a textual basis for rights. <b>This TREATS THE NINTH AMENDMENT LIKE IT NEVER EXISTED</b>. Without the promise of the Ninth Amendment the Constitution never would have been ratified. The fear was that if rights weren't listed they would be gone. The Ninth Amendment states that: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." In other words people's rights aren't limited to those that are listed (i.e.: The pursuit of happiness). <b>The view Elena Kagan espoused of a textual basis being required would give State and Local governments to take away every conceivable right that wasn't spelled out in text.</b> . To me, that is not being a Progressive. That is being a Neocon. The ONLY positives i saw were that she believed in equal rights for women, and that she would think about things with an open mind before deciding them. Joe Biden would have pressed her about natural law and the Ninth Amendment had he been on the Judiciary Committee. No, Elena Kagan is not a "liberal". She will probably get confirmed. Will we ever get our Bill of Rights back? i hope you don't mind, but i intend to post my comment as a blog post on my own blog after i post it here.

I don't think that's fair. I

I don't think that's fair.

I think it's a GOOD thing she wont make recourse to natural law or the Declaration of Independence. I can make up whatever the hell I want to be natural, so I can decide a case any way I want.

The law of the United States begins with the Constitution. All her decisions must reference that. It's one thing to say like Justice Stevens that you might use the declaration to shed light on the meaning of a word in the Constitution. That's fine, and Kagan has not said anything that would imply she's not willing to do that.

Rights indeed must have some textual basis. Don't misunderstand that to mean only a specific handful of rights explicitly enumerated. In ambiguous words like "liberty" and "process" courts have rightly seen their broad use can cover a lot of rights. Also, she did not claim as a textualist would that ONLY the language of the text matters, she has stated her belief that history, context, intent, international law can matter as well.

I think you simply misunderstood what she said, since I don't see how it is any great cause of concern. Saying rights must have a textual basis in the Constitution is way different from saying that we only have the rights explicitly mentioned. Hell, I don't know anyone who thinks that.

Agreements, Disagreements, Another Issue, and Time

Time will tell how fair or unfair my initial concerns are. It is evident that you, Bravo, and i may disagree to some extent both about natural law, the recognition of rights, and the context and applicability of what the rights grievances mentioned in the Declaration of Independence. The play "1776", from my point of view, was very interesting. Some affectionados of the Constitution lean toward the "strict construction" of the Federalist Papers. Others, like me, hold a more "Anti-Federalist view, more akin to the views of Benjamin Franklin and Thomas Jefferson. We both agree on what you said in the third paragraph, about the Constitution being the foundation of our laws and what decisions should reference, although there are other things that should be considered. Habeas Corpus and the right to be free from ex-post facto laws are matters of basic fairness that were included in the Magna Carta. Our Constitution was supposed to provide more individual liberty than did its English predecessor. The last paragraph may well be true except, i believe, for the last paragraph. If i am not mistaken, Judge Bork did not believe there was a right of privacy that could be inferred or construed from the text of the Constitution and its Amendments. There are, i believe, a number of people who think of themselves as Federalists who seem to think our rights are limited to the ones listed. You would be surprised how many times i have heard some ignorant person ask where in the Constitution does it say we have one right or another. One other concern i had about Elena Kagan is her admitted leaning toward the side of the prosecution with respect to the "confrontation" clause of the Sixth Amendment. That is the part of our due process rights having to do with our right to know what we are being accused of, (discovery) and to confront and cross examine the witnesses against us. One cannot cross-examine a document, so it's source must be available to at least be deposed. It is not infrequent for a prosecutor's office, lest they be accused of withholding exculpatory evidence (which some still do), will swamp the underfunded defense with "a mountain of evidence" whether relevant or not. Any public defender who has previously been a prosecutor will tell you of the difference in resources available. Public defenders do not win a very large percentage of their cases. Elena Kagan testified that when it came to requiring that witnesses be made available for testifying with respect to affidavits and evidence submitted, that there was that conflict between the prosecution and the defense as to what amount of evidence should be permitted without the witnesses being available for cross-examination (to be confronted). i am of the opinion that the legal system is already too heavily skewed in favor of the prosecution and that Elena Kagan being on the bench will not help that any. Please let me be clear. i am not opposing Elena Kagan or suggesting she not be confirmed. i am just saying that i don't think she is particularly progressive and that i have concerns. Overall,however, i think she will be good for women's rights. The extent of that good may be somewhat limited if her weighting of Stare Decisis (sp?) (deference to precedents) turns out to be as heavy as her testimony would seem to indicate.

paragraphs are your friend.

paragraphs are your friend. they will help :]

but you may think whatever you like about natural law and the constitution. but the judge's job is to decide cases based on the statutes, constitution and precedents. She gets her authority from the constitution and not from Almighty God. Why would Senator Coburn ask her if she thinks "as Elena Kagan" that we have a God given natural right to gun ownership? What a weird question! Frankly, I don't care. The only relevant question is whether we have a <i>constitutional</i> right to gun ownership. And given the second amendment and the settled law of Heller (which I disagree with) we do. I don't want Antonin Scalia deciding what's natural. What the hell does he know about it? His training is in constitutional law of the United States.

It's quite all right to cite the declaration if it sheds some light on a constitutional issue, such as your example of the word "liberty." But the declaration has no modern legal function.

Again, her remarks on this issue are not at all out of the ordinary or worrisome. Nor do they imply she's some kind of originalist. Even someone who seriously considers consequences in his decision like Breyer admits that you dont just look at whether the consequences are "good or bad." Rather you weigh the consequences related to a particular <i>textual provision</i> at issue, and see if they're in keeping with the purposes and intentions of that provision. I feel like you probably agree with this. So I'm having trouble understanding exactly what your grievance is.

I don't know exactly why she would be bad for women's rights. I haven't heard her speak much on privacy since I haven't seen much of her testimony regarding it. But if all your worries are about the only remark on the "textual basis" then I think you need not worry. Privacy DOES have a textual basis in the constitution, as Roe v Wade shows, even though the literal word isn't in the document. I haven't heard Kagan say anything that might suggest otherwise.

and concerning the last sentence of my last paragraph in the previous comment: yes, everyone actually thinks there are more rights than those enumerated. If I'm not mistaken (and i might be) even originalists like Scalia and Thomas believe that "due process" in the 5th and 14th amendments give unenumerated rights that aren't simply listed in the constitution, depending on the circumstances a case might have.

The weighing on Stare Decisis is a very good thing. That is my primary beef with Roberts & Co. They don't adequately respect precedent. Thus, they don't show enough deference to Congress. And so they don't rule cases narrowly, but rather make sweeping decisions that overturn decades of precedent. Take DC v Heller where they simply ignored the last half century of precedent of Gun Control cases, or Citizens United where they struck down the last century of precedent concerning the regulation of campaign spending. It's actually the liberal wing of the court (Breyer, Ginsburg, Sotomayor, and Stevens) that wants to decide cases narrowly and show deference to Congress.

Congress is our democratically elected body and should be deciding policy. When the liberal wing protects a woman's right to choose, or sensible gun control laws, or equal protection in public school zoning, or whatever..it's not because they're creating rights not in the constitution, it's because they're following the text of the constitution properly interpreted, and paying attention to precedent.

Thanks, and This May Surprise You

Thank you, Bravo, for your advice concerning paragraphs. Sorry, Bitch Blog readers, for the stuff that i missed whilst attempting to proofread.

It might surprise you to learn that i would wholeheartedly support and love it if President Obama (or any President) selected Professor Nadine Strossen, Esq. as a nominee to the Supreme Court. Before Ruth Bader Ginsburg was chosen to be a nominee to the Supreme Court, i wrote a letter to President Bill Clinton asking him to please consider Professor Strossen or solicit her advice for choosing the next nominee. As you are probably aware, Professor Strossen Was President of the American Civil Liberties Union for many year and wrote a book entitled: "Defending Pornography - Free Speech, Sex, and the Fight For Women's Rights". i also had the pleasure of watching her skillfully debate Justice Antonin Scalia on a program on Channel 13 (Public Television) on many of these same issues. i thought she prevailed. i personally believe Justice Scalia's written opinions are sometimes based on his personal wants and views, and that the arguments and Citations he gives are often a pretext for those written opinions.

My primary concerns about Elena Kagan involved governmental power, inalienable rights such as the "pursuit of happiness" "among others" (Declaration of Independence - Ninth Amendmen) and individual sovereignty - not a reliance on a perceived edict from "Almighty God". i am not a Dominionist or other fundamentalist. i believe firmly in separation of church and State. i was also concerned that she would over-weight recent precedebts set by a very, very, very political Court.

Some of the angst and concerns i had were amplified when i heard she had been endorsed by Kenneth Starr and Theodore Olson. Those fears have been somewhat reduced now that i see some of the Senators who oppose her confirmation.

i believe Elena Kagan, if confirmed, will eventually, despite my concerns that she will overweight Stare Decisis, be a good person to have on the bench in cases involving equal treatment of women in the workplace.
Perhaps that is one of the unspoken reasons so many Senators have come out in opposition to her. They certainly wouldn't want to have women wind up having an equal say on the Senate floor.

About That Elena Kagan Alleged Ex-Gay Thing

i happen to feel an affinity for lesbians and bisexual women, so naturally the questions and rumors about Elena Kagan being a former or re-closeted lesbian interest me. i have yet to find any reason to believe the rumors have any merit. There was an interesting article By Stephanie Mencimer in Mother Jones titled <a href="http://motherjones.com/politics/2010/05/elena-kagan-gay-rumors-supreme-c... rel="nofollow">Why Do So Many People Think Elena Kagan Is Gay? The veiled misogyny behind the meme that won't go away</a>. It's a great post. There was also an interesting <a href="http://www.newser.com/tag/39051/1/elena-kagan.html" rel="nofollow">compilation of News Stories About Elena Kagan at Newser</a>. i'm sure there are a lot of people scouring every record and following up on every rumor trying to find answers to questions about her personal sexual orientation. So when does the debate on the Senate floor begin? Though it's admittedly voyeuristic of me, i'm still interested in reading any hard evidence of the Elena Kagan alleged ex-gay thing (if any exists) and watching any Senators who would dare making jackasses of themselves bringing up the subject of her sexual orientation. Maybe it will continue to be a blog and whisper campaign. What do you think?

She's Got To Be Something, Right? Funny Title, Kind Of

Upon further reflection, i note that the title of this post adroitly points out the absurdity of even my own voyeuristic interest, not to mention media interest, in Supreme Court Nominee Elena Kagan's sexual orientation. As a Ms. Magazine blog post asked: <a href="http://www.msmagazine.com/blog/blog/2010/06/30/why-do-women-judicial-can... rel="nofollow">Why Do Women Judicial Candidates Get Questioned On their Sex Lives?</a>. Good question. i guess the excuses of the groups mentioned in the text of this post were pretty lame. Sorry about replying to myself, but i felt i should point out my own foible (of many) to those who hadn't already picked up on it.

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