Is She Gay? Do We Have To Know?

Andrew Sullivan has become as obsessed with the question of whether Supreme Court nominee Elena Kagan is gay as he was over whether Sarah Palin is really Trig’s mother:

It is no more of an empirical question than whether she is Jewish. We know she is Jewish, and it is a fact simply and rightly put in the public square. If she were to hide her Jewishness, it would seem rightly odd, bizarre, anachronistic, even arguably self-critical or self-loathing. And yet we have been told by many that she is gay … and no one will ask directly if this is true and no one in the administration will tell us definitively.

In a word, this is preposterous – a function of liberal cowardice and conservative discomfort. It should mean nothing either way. Since the issue of this tiny minority – and the right of the huge majority to determine its rights and equality – is a live issue for the court in the next generation, and since it would be bizarre to argue that a Justice’s sexual orientation will not in some way affect his or her judgment of the issue, it is only logical that this question should be clarified. It’s especially true with respect to Obama. He has, after all, told us that one of his criteria for a Supreme Court Justice is knowing what it feels like to be on the wrong side of legal discrimination. Well: does he view Kagan’s possible life-experience as a gay woman relevant to this? Did Obama even ask about it? Are we ever going to know one way or the other? Does she have a spouse? Is this spouse going to be forced into the background in a way no heterosexual spouse ever would be?

While the question isn’t entirely irrelevant, I think Sullivan has it backwards here in comparing sexual orientation to religion. We should not be prying into the sex lives of nominees. In an ideal world we also would not care about their religion–especially in an ideal world in which religious views do not impact public policy.

Maine Republicans Adopt Extremist Tea Party Platform

Maine in recent years has been unusual on the east coast for having two Republican Senators, who are among the few remaining moderate Republicans left in the country. I wonder how long it will be before the tea party decides to purge them as occurred with a  conservative (but not conservative enough) Senator in Utah last weekend. As a sign of where they are going, Maine Republicans have adopted the tea party platform. Maine Politics reports:

The official platform for the Republican Party of Maine is now a mix of right-wing fringe policies, libertarian buzzwords and outright conspiracy theories.

The document calls for the elimination of the Department of Education and the Federal Reserve, demands an investigation of “collusion between government and industry in the global warming myth,” suggests the adoption of “Austrian Economics,” declares that “‘Freedom of Religion’ does not mean ‘freedom from religion'” (which I guess makes atheism illegal), insists that “healthcare is not a right,” calls for the abrogation of the “UN Treaty on Rights of the Child” and the “Law Of The Sea Treaty” and declares that we must resist “efforts to create a one world government.”

It also contains favorable mentions of both the Tea Party and Ron Paul. You can read the whole thing here.

Dan Billings, who has served as an attorney for the Maine GOP, called the new platform “wack job pablum” and “nutcase stuff.”

Among the other “nutcase stuff,” the platform prohibits any funding to ACORN or other groups they dislike (or have black members), declares marriage to be an institution between a man and a woman,  calls to discard political correctness and fight the war against radical Islam to win,  and advocates sealing the borders.

Their fear and hatred of minorities is seen, beyond repeating the usual right wing smears against organizations such as ACORN, by their views on immigration.  They call for “No amnesty, no benefits, no citizenship -ever- for anyone in the country illegally. Arrest and detain, for a specified period of time, anyone here illegally, and then deport, period.” It’s “deport, baby, deport” on immigration, and “drill, baby, drill” on energy.

The same ignorance of health care is seen in this document as we saw throughout the health care debate. Their ideas on expanding coverage cost control are the same ineffective ideas I’ve debunked in many previous posts. They attack a non-existent “government take-over of health care” as being unconstitutional, declaring health care is not a right but “a service.” Elsewhere in the document they demand that, “Congress participates in the same health care plan as the general public. No preferential plans or treatment.” They remain oblivious to the fact that one of the driving ideas behind health care reform was to give the rest of the country the same type of health care choices as Congress now has.

I even think someone pulled out a Ouija board to contact Ayn Rand to add this clause: “Espouse and follow the principle: It is immoral to steal the property rightfully earned by one person, and give it to another who has no claim or right to its benefits.” This ignores both the fact that “property rightfully earned by one person” can be earned only with the infrastructure created by government, which must tax to preserve it, along with the need for a safety net.

In this document full of outright lunacy I especially find it ironic that they quote Thomas Jefferson in one section while also distorting the meaning of the First Amendment elsewhere. After all, Jefferson is probably quoted the most to demonstrate that the Founding Fathers did in fact intend to create a secular government with a strict wall of separation of church and state. Apparently they will quote him when convenient but ignore his actual liberal beliefs. While they oppose the First Amendment, they do strongly support the Second.

If they continue like this the Republicans are on the road to extinction, despite the likelihood of picking up some seats seats this year. A party cannot continue with views which so racially oppose the values which this nation was founded upon. If this lunacy continues, sane Republicans will have no choice but to remove this element from its base or leave the party.

Mixed Views From Both Left And Right On Kagan Nomination

News of the choice of Elena Kagan to be Barack Obama’s second appointee to the Supreme Court neither has me terribly upset or very excited. Presumably this is the type of reaction which was desired by choosing someone without a very strong, or controversial, public record.

There is mixed response on both the right and the left. There are already a number of falsehoods being spread, with Media Matters debunking a long list of  myths. The Volokh Conspiracy has some preliminary thoughts which show, while doubting the claims by some on the left that Kagan is a closet conservative, she is probably the best conservatives and libertarians can hope for. Ilya Somin believes that while Kagan is a liberal she has shown openness to non-liberal views. She also writes this,  disagreeing with some of the claims coming from others on the right:

While I won’t argue the point in detail here, I think Elena Kagan clearly has the necessary professional qualifications for the job (I thought that Sotomayor did too). She was a successful dean of Harvard Law School and a respected though not pathbreaking legal scholar. She also has a record of service in important Justice Department positions, including most recently as Solicitor General (the official responsible for arguing the federal government’s position before the Supreme Court). I don’t think that Kagan is the best-qualified possible nominee. Very few Supreme Court nominees are, since (to understate the point) it is not a purely merit-based process. But she does have at least the minimum necessary credentials. Comparisons to Harriet Miers are, I think, off-base.

Kagan’s openness to non-liberal views can be a virtue but also opens her to attacks from some liberals. Glenn Greenwald has outlined the criticism of her from the left. The issue of greatest concern to both liberals and libertarians is her view on presidential power. Radley Balko of Reason writes:

She’s a cerebral academic who fits Washington’s definition of a centrist: She’s likely defer to government on both civil liberties and regulatory and commerce issues. And though libertarians allegedly share ground with Republicans on fiscal and regulatory issues and with Democrats on civil liberties issues, neither party cares enough about those particular issues to put up a fight for them. Which is why Kagan sailed through her first confirmation hearings, and is widely predicted to sail through the hearings for her nomination to the Supreme Court.

Justice Stevens’ reputation as a stalwart defender of civil liberties was probably overstated. Which makes it all the more disappointing that Obama’s choice to replace him will almost certainly make the Court even less sympathetic to the rights of the accused. And taken with Obama’s decision to replace Justice Souter with Sonia Sotomayor, a former prosecutor with a “tough on crime” reputation, the candidate who touted his days as a community organizer for the powerless and dispossessed and who decried the criminal justice system’s disproportionately harmful treatment of minorities and the poor during the campaign will now almost certainly leave the Supreme Court more law enforcement-friendly and more hostile to criminal defendants than he found it.

While I would prefer a nominee who has a strong record on civil liberties issues I’m not certain there is cause to panic. Kagan has spent her time in government in the executive branch and does appear to see matters more from their perspective, but this could change as she works in a separate branch of government. Kagan’s job as Solicitor General is to argue the position of the administration but her views as a judge might not necessarily be the same. I also hope that her experience as Solicitor General has also led her to see the weakness of some administration arguments, even if she could not act upon this in her current position.

There has also been speculation as to how the appointment will affect efforts at marriage equality. William Jacobson discusses her view that, “There is no federal constitutional right to same-sex marriage.” This does not mean she is personally opposed to same-sex marriage, but that she might be unlikely to support judicial as opposed to legislative efforts to achieve this goal.

While immediate attacks from the right wing blogs were anticipated, it remains unclear as to whether the Republican Party will try very hard to block her nomination.  Seven Republican Senators did vote to confirm Kagan to be Solicitor General.   However Bob Schieffer believes that Republicans will wage a vicious fight in light of the current degree of polarization. He calls this an “especially toxic election year” as the far right members of the tea party movement are out to purge even conservative Republicans from the GOP for not being conservative enough. He believes  “you will see some Republican Senators, moderates, giving very careful consideration to their vote on Elena Kagan. In a way, a vote against her would be ‘Tea Party insurance,’ to let people know that they’re moving to the right.”