Kagan Gets the Kitchen Sink

The media debate over Supreme Court nominee Elena Kagan has covered everything about her except her legal views, observes Eric Alterman.

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Media figures have made all kinds of accusations about Supreme Court nominee Elena Kagan, above. But they've hardly made a whisper about her actual legal views. (AP/Alex Brandon)
Media figures have made all kinds of accusations about Supreme Court nominee Elena Kagan, above. But they've hardly made a whisper about her actual legal views. (AP/Alex Brandon)

It’s tempting to treat our present confirmation regiment for Supreme Court nominees as a kind of Theater of the Absurd, with all the actors playing previously prescribed parts. But nothing works as it should in Washington these days, and so only a few people are playing their parts, though the absurdity quotient remains as high as ever.

What is necessary to understand about the “debate” over Supreme Court nominees is that the nominee in question’s actual qualifications are secondary at best. While a few people on either side of the political divide can be expected to think independently about a nominee and examine the evidence, there are certain people in the media, the blogosphere, and in partisan organizations whose reactions to a nominee are defined by political geography: What they say depends on where they sit.

Speaking of geography, The Washington Post’s Kathleen Parker gives every impression of insisting that Elena Kagan—President Barack Obama’s pick to replace retiring Supreme Court Justice John Paul Stevens—should be disqualified from serving on the Court by virtue of the neighborhood in which she was raised: New York’s Upper West Side (where your author also happens to live). Nothing that Kagan walked “past the First Baptist Church to ballet class,” she worries that “It seems remote to unlikely that a woman whose life has involved Baptist churches and ballet slippers would find herself on a track to today’s Supreme Court.”

New Yorkers, Parker argues, are not “ordinary” for her taste when it comes to Supreme Court nominees, as we are “more liberal than the vast rest of the country.” What’s more, “More than half the country also happens to be Protestant, yet with Kagan, the court will feature three Jews, six Catholics, and nary a Protestant. Fewer than one-fourth of Americans are Catholic, and 1.7 percent are Jewish.”

All this means that like Elena Kagan, we Jewish New Yorkers “can’t be characterized as anything close to mainstream America” and apparently have no business being on the Supreme Court (although I hear we are good with money). But seriously, folks, for an examination of Parker’s silly logic that does us the favor of giving her nutty claims far more attention than their intellectual merits would warrant, see Ed Kilgore’s FiveThirtyEight post here.

Despite its imputations of un-American-ness on the part of New York Jews, Parker’s arguments are almost elegant compared to much of what was said about Kagan on Fox News, talk radio, and the websites of certain conservative publications. For instance, everywhere on these alleged news outlets one could find untruths spread about Kagan’s alleged banning of military recruiters from Harvard Law School during her period as dean there. This is false, as Robert C. Clark, who preceded Kagan as dean there, explains. And yet somehow it’s no surprise that Sean Hannity, among others, are insisting that the lies they are telling about Kagan make her unfit for the Court.

The phony story was first put forth by National Review’s Ed Whelan (who is also concerned with a New Yorker’s inability to drive). Whelan appears to be following in Charles Dickens’ footsteps by writing serial fiction on a daily basis on the National Review Online. According to him, Kagan “treated military recruiters worse than she treated the high-powered law firms” that represented terror suspects. Whelan also misread—willfully one suspects—a recent article in the Daily Princetonian regarding the topic of Kagan’s college thesis to insist that her choice of topics—socialism in the early part of the century—put her “well on the Left,” a meme that like the recruiter nonsense was immediately picked up and spread on Fox Nation.

Even so, these guys are pikers compared to the master El Rushbo, who taught the lesser crazies a little something about how to do the job when he attacked Kagan for implying that America’s original Constitution—which, after all, gave its blessing to slavery and refused women the vote—might be improved upon. But when things get this crazy this fast, it’s a sure sign that either the country’s political discourse has gone dangerously off the rails or this is a nominee who has few if any genuine vulnerabilities.

It’s sad to say that in this respect Kagan’s strength is her weakness. She has never been a judge—thanks to Senate Republicans refusing to schedule a hearing on her 1999 nomination to the United States Court of Appeals for the District of Columbia—and her paper trail is paper thin. Unless Kagan is particularly forthright about her legal views in her hearings, the Senate and the country will be asked to buy a proverbial pig in a poke. (Such forthrightness is something Kagan herself has advocated in the past.)

But in all likelihood the media will continue to focus on her personality instead of engaging in sensible discussion about her judicial philosophy. Nothing new there, of course, but in Kagan’s case, because she is an unmarried woman who drinks beer, smokes an occasional cigar, plays poker, and once upon a time played softball, it has resulted in an inquisition into her sexuality—as if the use of one’s genitalia rather than one’s intellect were the job of the judge.

This exercise began when Ben Domenech—who is a former Bush administration aide and Republican Senate staffer invited by to publish on the network’s website in mid-April—observed that President Obama would “please” much of his base by picking Elena Kagan as the country’s “first openly gay justice.” In doing so Domenech demonstrated perhaps all of the qualities that simultaneously make sensible discussion of complicated political questions in the American media so difficult.

In the first place, he was lying. Kagan is not “openly gay” and never has been. (As it happens I had personally reported that Kagan “was not openly gay” just days earlier on The Daily Beast in the context of identifying candidates who were. Many others did as well after Stevens announced his impending retirement.) Second, the accusation was entirely personal and prurient and had nothing whatsoever to do with her legal views. Third, CBS, which originally refused to take down the post despite a complete lack of any attempt at verification, offered credibility to this malicious falsehood, further eroding the distinction between this once-proud news organization and the most petty, partisan corners of the blogosphere.

Domenech later defended himself by insisting he had heard the accusation “mentioned casually on multiple occasions by friends and colleagues.” He also claimed—with impressive disingenuousness even for a right-wing blogger—that the naming of an openly gay justice would show “how far we’ve come as a society” and that this “will be an issue of political discussion, whether we like it or not.” To add insult to injury, Domenech had earlier been hired and fired over a three-day period by a no less desperate Washington Post when he was discovered to be a serial plagiarist. Here he was again, the second time as farce.

Joining in this forcible inquisition was experienced sex cop Andrew Sullivan of The Atlantic, who claimed purely on rumor and hearsay that Kagan’s “possible life-experience as a gay woman” was an important factor in considering her worthiness for the bench. Sullivan himself once claimed to be a victim of “sexual McCarthyism” and scored those writing about his apparent sexual hypocrisy for participating in a “high-tech lynching of an uppity homo.” Nevertheless, he insisted that “In a free society in the 21st century, it is not illegitimate to ask. And it is cowardly not to tell.”

In fact, Sullivan was right the first time despite the foolishness of his Clarence-Thomas-as-martyr metaphor. No one’s sexuality is anyone’s business unless he or she chooses to make an issue of it. Sexuality, after all, is fluid and difficult to define. Some people are bisexual. Some people are asexual. Most of us are private. Where would such an inquisition end and who would want to live in such a society where each of us was forced to publicly declare ourselves on our job applications?

Clearly, the current “freak show” media debate has proven able to discuss just about everything regarding Kagan save her actual legal views. Let’s hope—against experience, alas—that the Senate does a better job.

Eric Alterman is a Senior Fellow at the Center for American Progress and a Distinguished Professor of English at Brooklyn College. He is also a Nation columnist and a professor of journalism at the CUNY Graduate School of Journalism. His most recent book is,Why We’re Liberals: A Handbook for Restoring America’s Most Important Ideals. His “Altercation” blog appears sporadicallyhereand he is a regular contributor toThe Daily Beast.

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Eric Alterman

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