Wednesday, May 12, 2010

Should we be concerned about Elena Kagan?

Some of the criticism surrounding the nomination of Elena Kagan has been downright cruel and unabashedly bigoted.  Keep in mind that Kagan has never discussed her sexual orientation publicly, so no one in the public sphere knows who she is.  And that's her perrogative.  Here are a few samples:

"One qualification for public office is personal character, and nothing speaks to character more than the choices one makes when it comes to sexual conduct. Bill Clinton convinced an entire generation of America's youth that oral sex isn't really sex, and as a result we've seen an explosion among millenials in cancers of the throat and head caused by the HPV virus, which is spread through oral-genital contact…. Social conservatives must rise up as one and say no lesbian is qualified to sit on the Supreme Court. Will they?"

---Bryan Fischer of the anti-gay American Family Association

"If Kagan is practicing immoral sexual behavior, it reflects on her character as a judicial nominee and her personal bias as potentially one of the most important public officials in America. The popular mantra — even among conservatives — is that Kagan’s sexuality is ‘irrelevant.’ …Besides, in an era of ubiquitous pro-gay messages and pop culture celebration of homosexuality, it’s ridiculous that Americans should be left guessing as to whether a Supreme Court nominee has a special, personal interest in homosexuality.  Given the important homosexual-related issues coming before the Supreme Court , Kagan should say so if she has a personal interest in lesbianism.

---Peter  LaBarbera of Americans for Truth

But here's the problem: Kagan has made public some of her views on gay marriage.  She has stated that there is no Constitutional Right for same-sex marriage.  (We don't know whether she feels that the Constitution implies such a right.)  And she wrote a memo to then President Clinton urging him to support very limited access to late-term abortions.  So on at least two hot-button issues, Kagan has no demonstrated a liberal bias.  (She did make waves when she refused to allow ROTC to recruit on campus when she was Dean of Harvard Law School, saying that DADT violated the school's anti-discriminatory policy.)

Despite this record, the right wing is going nuts.  And guess what?  They are smart to do so, although the homophobia that characterizes some of the criticism is far beyond the parameters of acceptable discourse.  While the Democrats try to find cozy compromises, the Republicans will have none of it.  Remember health care?  Think how different that debate would have been if the Single Payer had been serioulsy pushed.  Maybe the public option would have been seen as centrist.

We don't have many "far left" politicians to broaden the spectrum.  So everything keeps moving to the right. If Kagan replaces Stevens on the Court, the court will shift to the right because thus far she has not demonstrated the progressive credentials of the retiring judge.  When was the last time a Republican president nominated a "centrist" candidate?  It just doesn't happen.  As Rachel Maddow said the other night, the Supreme Court hearings have become a discussion between the right wing and the middle.  It's all about proving how conservative you are.  The liberals go into hiding, so middle-of-the road becomes the new liberal.  And that only leaves room to move to the right.

The Republicans push conservative ideologues while the Dems push more centrist consensus builders.  And that leaves the progressive wing of the party out in the cold.


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