Rescuing Elena Kagan from "smears"

Some of the reactions to Elena Kagan’s ascent toward the Supreme Court reflect a shameful prejudice and an entrenched partisanship that say less about her qualifications than about the imperfections of America and the ugliness of our politics.

First, take the question of her sexual orientation. Bloggers right and left, gay and straight, have speculated or asserted that Kagan is a lesbian. After all, she’s 50, young for the court, which is partly why she was chosen, but very old to be unmarried; that seems to be enough to establish or strongly suggest that she is “openly gay,” as Ben Domenech wrote in a notorious March post for CBS Online that was removed after the White House denounced it as a “smear.”

But it’s not just the unproved allegation, it’s also the administration’s unthinking pushback that reinforces one of the last acceptable strains of prejudice in our society. Would it be a “smear” to label a Supreme Court nominee Jewish, Catholic, or Hispanic—categories that, alongside outright sexism and racism, define the history of discrimination in this country? It was less than a century ago that the confirmation of Louis Brandeis, one of the greatest of Supreme Court justices and the first Jew ever to sit on the court, was fiercely contested not only because he was liberal, but because he was different.

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To rebut a charge as a “smear” is to accept the underlying premise—that if it were true, there would be something wrong here. Yet that is precisely the tactic of Kagan’s assigned handlers. This week, they rushed out her law school roommate to testify: “I know she’s straight.” Why, Kagan even “dated” back then. Enter former New York Gov. Eliot Spitzer (presumably not at the behest of the White House) to remember their days together at Princeton: “I did not go out with her, but other guys did.”

Thus does publicity-seeking aimed at redemption descend to the level of farce. Who cares what Spitzer recalls—except in this case to conclude that Kagan dodged a bullet? How can a roommate of decades ago possibly know her orientation now, or be sure of what it was then?

Then there are the fundamental questions: Why should this matter—and why should the Obama White House, of all places, react to an attack by, in effect, validating its anti-gay point? The right response, in a society and from an administration committed to equality, is that Kagan should be judged on her substantive qualifications; that all Americans, even Supreme Court nominees, deserve to be treated with a dignity that doesn’t degrade them for their race, or faith, or nationality, or sexual identity.

The president obviously wants the easier road to Kagan’s confirmation; fine, but along the way, don’t throw principle into the ditch. Don’t give in to the merchants of prejudice, who are also now arguing that her sexual identity aside, Kagan is at least a gay fellow traveler.

The president of the National Organization for Marriage—couldn’t that have been the Orwellian name for an anti-miscegenation group around the time Barack Obama was born?—has charged that Kagan on the court would declare a constitutional right to same-sex marriage. I hope she would; but in fact she has specifically disclaimed that view: “There is no federal constitutional right.” So the critics are flat-out wrong, even if decades from now or sooner, Kagan’s Plessy-like stance on gay marriage will be discarded.

She is also arraigned for her decision as dean of Harvard Law School to deny military recruiters the use of the school placement office so long as “don’t ask, don’t tell” was in effect. She was only upholding the university’s anti-discrimination policy, which was paralleled at other leading institutions. And the recruiters always had access to students—as the carefully calibrated Kagan has noted—through channels like the Harvard Military Veterans. At every point, she followed the law. When the Supreme Court rejected the argument that it infringed on free speech to require universities to admit military recruiters as a condition of federal funding, Kagan and other law school deans conceded.

But aha, the critics claim, she did personally condemn “don’t ask, don’t tell” as “a moral injustice.” Indeed, she did. That’s pretty much what Adm. Mike Mullen, the chairman of the Joint Chiefs of Staff, also said in his congressional testimony in favor of ending the policy: “It comes down to integrity.”

These early attacks on Kagan have dealt in anti-gay bias partly because there isn’t much else to deploy against her. A thin paper trail, to the consternation of many progressives, shows her to be a decided centrist during her memo-writing days as a domestic policy advisor in the Clinton White House. The Republicans, as some of them said openly, have been determined to confront any Obama nominee, regardless of facts or ideology, in order to fire up their base and increase conservative turnout in November. They’ll seize on anything to claim that a nominee is radical, out of the mainstream, “socialist”—the constant rallying cry of the Party of No.

In Kagan’s case, they have a far-fetched if convenient target: Her undergraduate thesis explored “the sad but …chastening story” of the failure of socialism in America—why the movement took hold in Europe but not here. This will be swiftly disposed of in the confirmation hearings; she wasn’t advocating socialism, but studying it. By her opponents’ standard, William F. Buckley, Jr., who wrote about the failures of communism, was a communist.

Here, too, Kagan’s anxious advocates sometimes mirror the unworthy assumptions of her attackers. Oh no, she wasn’t an activist as an undergraduate; the liberal watchdog MediaMatters.org quotes a Princeton classmate’s faint praise: “She was not the kind of person that would get involved” in anti-apartheid protests, this person recalled. “She could stand back and observe.” The defense here: She didn’t demonstrate against apartheid—as if that was good. Better that she had.

Kagan may be the best choice—although there are dissenting liberals who doubt it. But undeniably, one reason she was picked was to circumvent the clash and smash of a bitter partisan time. We can already see that the strategy won’t work fully; she will be confirmed, but only after a faux battle against her make-believe radicalism.

Beyond this, the Kagan choice extends the tendency of presidents of both parties to look for the inoffensive, the uncontroversial, the largely unquotable when sifting through potential Supreme Court nominees. In effect, such caution rules out those who have delved deeply into, and written extensively about, constitutional issues. The greatest scholars and judges need not apply. Harvard’s Laurence Tribe, a landmark constitutional theorist and perhaps the leading Supreme Court litigator of his era, wasn’t given a second thought by Bill Clinton. Similarly, this time, Yale Dean Harold Koh didn’t get a second glance from Barack Obama. George W. Bush was equally careful; the presentably cheerful John Roberts stooped in his hearings to an inane promise to just “call balls and strikes” as a justice. Never mind that as chief justice he’s been busy changing the rules of the game.

So the confirmation hearings are now a predictable charade of questions that senators know won’t be answered, followed by calculated evasions from the thoroughly-tutored nominees. However hollow the process, it will not change. The president’s hope—every president’s—is to send up a nominee with as little edge as possible, and then blunt the other side’s efforts to sharpen it.

Elena Kagan, like John Roberts and Samuel Alito, may prove to be far edgier on the court than during her confirmation. She may be a great justice. But she will become a justice because in today’s riven politics that possibility, unknowable and unverifiable, is hidden in the recesses of future history.

But in traversing this expedient course, in navigating an apparently immutable partisan battlefield littered with code words and untruths, is it too much to ask that at minimum we do not debase a whole portion of our fellow citizens and betray the ideal inscribed on the entrance to the court: “Equal justice under law”?