Monday, May 10, 2010

On President Obama's Supreme Court nomination

President Obama has nominated Solicitor General and former Harvard Law School Dean Elena Kagan to fill the Supreme Court seat that will soon be vacated by Justice John Paul Stevens.

The National Organization for Women gave cautious support to the nomination:
"While we are pleased to see the second woman in a row nominated to the court, gender alone is not enough," said [NOW President Terry] O'Neill. "Justice Stevens was a clear champion of social justice, who will leave behind a proud liberal legacy. We are eager to learn that Elena Kagan, too, will stand for equality and fairness across the board."

Encouragingly, Kagan has expressed clear opposition to the discriminatory Don't Ask, Don't Tell policy that has forced out thousands of lesbian and gay service members from the military. However, having never served as a judge herself, it is unclear where Kagan stands on most of NOW's key issues.
Elizabeth Nowicki at Feminist Law Professors points out that as dean of Harvard Law School, Kagen hired mostly white men:
CNN.com had an interesting article (here) about Kagan and women who pull the ladder up after themselves.  The article’s author made a good point about the fact that, although Elena Kagan, Obama’s nomination to the Supreme Court, is a woman, she is a woman whose record at Harvard Law School might suggest to some observers that she does not value diversity or promote other women.  For example, the article’s author notes that, under Kagan’s leadership, Harvard Law School made 29 faculty hires consisting of 28 white faculty members and only five women.  (This despite the fact that law school graduates have been more than 40% female for quite some time.)
Katherine Franke at the Gender and Sexuality Law Blog notes that Kagen is best known for her ability to bring peace between warring factions of white men at Harvard Law School, and that she is a safe, non-ideological choice for the court. She clearly not as liberal as John Paul Stevens, and not as liberal as other candidates whose names have been mentioned in the news. Furthermore:
There is something to watch out for, however, in the confirmation of Elena Kagan, about which I have already blogged: Queer-baiting.  Despite White House insistence to the contrary, rumors still circulate broadly that Kagan is a lesbian.  The same kind of insinuation surrounded David Souter’s nomination to the Court as would have Janet Napolitano’s or other “single women.”
To this end, surely much will be made of Kagan’s handling of the “Solomon Amendment” issue and litigation while she was Dean, largely in an effort to identify her with lesbian and gay rights issues.

The Solomon Amendment is a federal law that allows the Secretary of Defense to deny federal grants to institutions of higher education if they prohibit or prevent ROTC or military recruitment on campus.  Many law schools have sought to prohibit the JAG Corps from on-campus recruiting of law students because of its official policy of hiring only heterosexual or celibate applicants.  Kagan was one of the deans who supported a lawsuit challenging the military’s hiring policies in FAIR v Rumsfeld, and was one of 40 Harvard Law School professors who signed a friend-of-the-court brief written by Walter Dellinger supporting the FAIR plaintiffs.

Franke notes that right-wing blogs have started claiming that Kagen is a lesbian. The White House says she isn't, and "has been treating it like some kind of a scandal that she might be so accused." Franke already views the Kagen nomination as a setback for progressives, and thinks it could also be "a setback for supporters of lgbt rights." She says that the president has been "sucker punched" by the homophobic right. I think that what she means is that they've gotten him to talk as if being a lesbian is a bad thing.

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