Month: May 2010

A reader writes:

One important actor you forgot to mention in your remarks: Elena Kagan.  If there are elements of her private life that are unknown, after years in the public eye, it seems to me that she has chosen to keep them private.  And if that is the case, I don't think it's fair to accuse the White House of cowardice.  Perhaps you think Kagan herself is a coward.  If so, you should come out and say that.  But I don't see how it can be argued that it is the administration's duty to out her.

Another writes:

Did you really miss the very forceful push-back by the Obama administration on this?  They have, indeed, told us definitively that she is not. Maybe you don't believe them. Maybe she is and they really are lying.  And they shouldn't have called it a "charge." But don't lie about what they've said.

Another:

The White House, in beating back the CBS blogger report, said she is not gay. Both Kagan and the White House presumably understand the consequences of getting caught in a lie on this question, and they also would understand how easy it would be to uncover that lie if indeed her supposed lesbian relationship were such an open secret around Cambridge.  If she's gay, it would matter a great deal (and the Victory Fund would be shouting it from the rooftops in celebration of an historic appointment).

But she says she isn't, the White House says she isn't, nobody with any proof to the contrary has come forward to contradict her, and so absent any compelling reason not to, I'm willing to let her own telling of her life story suffice.

Another:

I realize that there will be those who chase after this question, largely from the right or the infotainment 24-hour channels. But let them be the ones intruding, not you.

The NYT does its bit:

She was a creature of Manhattan’s liberal, intellectual Upper West Side — a smart, witty girl who was bold enough at 13 to challenge her family’s rabbi over her bat mitzvah, cocky (or perhaps prescient) enough at 17 to pose for her high school yearbook in a judge’s robe with a gavel and a quotation from Felix Frankfurter, the Supreme Court justice.

She was the razor-sharp newspaper editor and history major at Princeton who examined American socialism, and the Supreme Court clerk for a legal giant, Thurgood Marshall, who nicknamed her “Shorty.” She was the reformed teenage smoker who confessed to the occasional cigar as she fought Big Tobacco for the Clinton administration, and the literature lover who reread Jane Austen’s “Pride and Prejudice” every year.

And she loves opera. Is there nothing the press won't reveal about her? Oh, yes, I forgot … the question that we are not allowed to ask, a question that, if true, would have helped shape her worldview as profoundly as, say, her penchant for the occasional cigar. But this is not just not "fit to print." It is not "fit to ask."

An interactive chart.

Hanna Rosin rules the question out of bounds:

As our own Emily Bazelon and Dahlia Lithwick pointed out last week, unless anyone comes up with actual proof that Elena Kagan is a lesbian—and NO, this is not an invitation to go hunting—the whisper campaigns and the whisper campaigns about the whisper campaigns should end. Whether that stops people from endlessly Googling “Elena Kagan” and “gay” is another story.

But, as Hanna notes, the president himself, by virtue of his criterion of picking Justices who have diverse experiences and have experienced discrimination, has already alluded to private facts about Kagan's life:

Law was not just an “intellectual exercise” for her, but something that

affects the “lives of ordinary people.” Behind the law, he said, she understands that “there are stories of people’s lives.” This naturally led into a little biographical sketch of Kagan. We learned that she is the granddaughter of immigrants, that she comes from a family of teachers, and that neither of her parents is still alive.

Is Hanna really saying that a person's sexual orientation in today's society is less of an issue than the fact that she comes from a family of teachers or is the grand-daughter of immigrants? Please. The premise is absurd on its face.

Did Obama shy away from Sotomayor's ethnicity? So why is it somehow unseemly or a function of "whispers" to ask an obvious empirical question to which there is an empirical answer?

By the way, Hanna. I am not whispering. I am asking in the same voice and with same decibels as I would ask any question of a public official who may, in fact, rule at some point on the very constitutional grounds of my own civil marriage. The only thing that could conceivably put this question into the zone of "whispers" and "privacy" is homophobia – and yes, that means the homophobia of liberal journalists.

In fact, the entire premise of Hanna's post is that there is something wrong with asking someone in the public eye about their sexual orientation. There isn't. This is not the same thing as "outing" people. It is simply asking them to tell, and refusing to be co-opted by double standards. Kagan can refuse to answer; or she can tell the truth, whatever it is, and move on. Those are her options. But the press has only one professional option: to ask a factual question that deserves a factual answer.

But they won't. Of course they won't. There is almost a competition to refrain from asking – so as to burnish one's reputation for seriousness and integrity.

Greenwald bows to political reality:

As I said from the beginning, the real opportunity to derail her nomination was before it was made, because the vast majority of progressives and Democrats will get behind anyone, no matter who it is, chosen by Obama.  That's just how things work.  They'll ignore most of the substantive concerns that have been raised about her, cling to appeals to authority, seize on personal testimonials from her Good Progressive friends, and try to cobble together blurry little snippets to assure themselves that she's a fine pick.  In reality, no matter what they know about her (and, more to the point, don't know), they'll support her because she's now Obama's choice, which means, by definition, that she's a good addition to the Supreme Court.  Our politics is nothing if not tribal, and the duty of Every Good Democrat is now to favor Kagan's confirmation. 

Ezra Klein:

Nominating Kagan for the court is a bit like Joe Biden naming his former chief of staff, Ted Kaufman, to replace him in the Senate. The choice is based on private knowledge rather than public knowledge, but it's not based on an absence of knowledge.

Jeffrey Toobin dissects the Kagan's position on DADT:

What is striking…is that the controversy probably tells us little about what kind of Justice she will be. Politicians (and deans) finesse issues all the time, and good ones (like Obama and Kagan) offend as few people as possible in the process. Judges, on the other hand, decide. Finessing is usually not an option. It’s a good and healthy thing that Obama decided to end the monopoly of former judges on the Supreme Court. But the experience of judging—the agony of making that up or down decision—is unique, and it will be something new for Kagan. The gays-in-the-military controversy illustrates just how different her old jobs are from her likely new one.

Adam Serwer looks over Kagan's record on executive power:

As Tom Goldstein has noted, when Kagan asserted the executive's authority to detain al-Qaeda members without trial under the laws of war, she was stating what her prospective boss had stated earlier. Even prominent Bush critic Dawn Johnsen came to the same conclusion when asked a similar question during her hearing. Kagan signing onto this criticism of the Graham amendment suggests far more skepticism of executive power in the realm of foreign policy than I initially assumed — it puts her, in 2005 and prior to Hamdan, on the same side of the detainee question as the lawyers at the Justice Department who were smeared by Liz Cheney and Bill Kristol.

That said, Kagan's record is mostly blank. This letter is not a record. To borrow Goldstein's metaphor, this is a thin reed to hang an assessment of how a Justice Kagan might rule on such issues in the future. The fact that Kagan avoided commenting on many of the most controversial issues of her day makes her a gamble, although I suppose it means something that — given her relative silence — she chose to comment on this one. At the same time, one assumes that if these kinds of issues really did matter, she would have spoken up far more than she did.

And William Jacobson highlights Kagan's view of same-sex marriage – that there is no constitutional right to marriage equality:

This doesn't mean that Kagan opposes gay marriage. But she clearly believes it is a matter for the political process, not a constitutional right.

While it is not clear what view the other Justices have, it is likely that a Kagan on the Court will put an end to any ultimate chance of success in the federal lawsuit lawsuit filed by David Boies and Ted Olson to have California Prop. 8 declared unconstitutional.

Reasonably assuming the four conservative judges share Kagan's view, there now will be a definite majority on the Court against recognizing a constitutional right to gay marriage.

"We should give more consideration to the quality of homosexual relationships. A stable relationship is certainly better than if someone chooses to be promiscuous," – Cardinal Christoph Schönborn, head of the Austrian Church and close friend of the Pope.

The same pup has shown up at nearly every demonstration and riot in Athens over the past few years. Plenty of action shots here.

(The dog stood guard over a line of protesters in December when students took to the streets to protest against a plan for policing at universities. Photo by Aris Messinis/AFP/Getty Images.)

Goldblog discovers a new source of Jew-hatred: the English. Now the resilience of English anti-Semitism is a fact; it is also a fact that in recent years, especially on the left, explicit loathing of Israel has become disgustingly common. But open discussion of the real crisis in Israel and its impact on a global war that increasingly affects the entire West is not anti-Semitism, especially when it is conducted as a way to promote a way for Israel to survive with its values and Jewish identity intact. And the attempt to chill such discourse can surely be the effect of sentences like this one:

Much of "Trials of the Diaspora" describes the deep tradition of English literary anti-Semitism, from Shylock to Fagin to Caryl Churchill, in a summary that leaves you wondering if it is possible for a properly-educated Englishman to avoid harboring certain stereotypical views of Jews, stereotypes and assumptions that manifest themselves in disproportionate hostility whenever Jews behave in ways the English find at all disagreeable.

According to Jim Pickard, the Tories are "prepared to whip a referendum on the alternative vote through the House of Commons" but Labour has agreed to immediate action on the alternative vote plus additional electoral reforms. Iain Dale warns:

I am just hearing that the Conservatives have offered the LibDems a referendum on AV. This is exactly what Brown has already offered. The LibDems must surely realise that that's as much as they are going to get, especially as there is not a majority in the Commons for anything more. Listen to Tom Harris on this. He talks sense.

There are two good things which could emerge from a Lib-Lab coalition. One would be almost guaranteed Tory landslide at the next election, which would surely not be long in coming. And a second would be the virtual decimation of the Liberal Democrats as an electoral force.

Time to make your minds up my LibDem friends.