Here We Go Again: Queer-Baiting Supreme Court Nominees

Posted on May 10th, 2010 by Katherine Franke

Photo by Chip Somodevilla/Getty Images

As we all now know, President Obama will today nominate Solicitor General Elena Kagan to fill Justice John Paul Stevens’ seat on the Supreme Court.  Sure, it will be great to have another woman sitting on the Court, but chromosomal diversity isn’t the most important value to be celebrated as Obama makes his mark on the Court with his second nomination.  Kagan, the former dean of the Harvard Law School, is perhaps most known for her ability to forge peace between warring factions of white men.  (Her deanship at Harvard was distinguished most prominently by her skill at healing a generation-old rift between right and left on the faculty that had paralyzed the place and made hiring impossible.)  Not an unimportant skill, but one that night have better qualified her for the top job at the State Department?

In any event, I don’t imagine legal progressives generally and women’s legal defense funds specifically, shifting into high gear on this nomination.  Kagan is a safe, relatively non-ideological choice for the Court, and is certainly less progressive than the Justice she is nominated to replace and other of the jurists whose names circulated as possible nominees (the 7th Circuit’s Diane Wood, for instance).  While Kagan, if confirmed, will no doubt do a good job getting the warring factions on the Supreme Court to get along with one another, I worry that this appointment will miss an opportunity to populate the Court with a counter-weight to the extreme libertarianism/conservatism of Justices Roberts, Alito, Scalia and Thomas

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.  I’ll just note that 56 Columbia Law School faculty submitted a brief tot he Supreme Court in the case. Read more about the Columbia Law faculty brief here.)

When a whispering campaign first started circulating in the conservative blogosphere that Kagan was a lesbian the White House promptly stepped in to set the record straight: “she isn’t,” they insisted, and then began to treat the rumors like some kind of dirty tactic. (For the record, I have no idea what her sexual orientation is.)  If this continues, the Kagan nomination could turn out to be a set-back not only for those of who hoped a democratic president would appoint progressives to the Court, but also a set-back for the cause of lgbt rights, the President having been sucker-punched by the homophobic right.


  1. It is hard to add a substantial comment, when all I wanted to say had just been said. However, numbers do matter, so I add my voice to the choir believing that this nomination only underscores the depth of the Obama administration’s progressiveness.

  2. Here We Go Again: Queer-Baiting Supreme Court Nominees

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