President Obama Announces His Nominee For Supreme Court Justice

“Liberal cowardice” and “conservative discomfort” are burying the question many privately are posing about Supreme Court nominee Elena Kagan, asserts noted political commentator and blogger Andrew Sullivan, who identifies himself as a gay Catholic.

“So is she gay?” Sullivan asks on his Atlantic magazine blog.

“If she were to hide her Jewishness, it would seem rightly odd, bizarre, anachronistic, even arguably self-critical or self-loathing,” Sullivan reasoned. “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.”

Deriding the “homophobia of liberal mainstream journalists,” Sullivan said the press has only one professional option, to “ask a factual question that deserves a factual answer.”

“But they won’t. Of course they won’t,” he wrote. “There is almost a competition to refrain from asking – so as to burnish one’s reputation for seriousness and integrity.”

From the other side of the cultural divide, Peter LaBarbera, president of the evangelical Christian group Americans For Truth About Homosexuality, sounded a similar note.

“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,” LaBarbera said.

‘First openly gay justice’

The White House tried to quash the issue last month when it criticized CBS News for running on its website a piece by blogger Ben Domenech that said Kagan is an open lesbian.

Domenech wrote that Obama “would please much of his base” by nominating Kagan, because she would be the “first openly gay justice.”

But an unnamed Obama administration official told the Washington Post the contention was “inaccurate,” and former White House Communications Director Anita Dunn accused CBS News of “posting lies.”

Domenech apologized, but he didn’t retract his assertion. In an April 15 update, he wrote that while his statement that Supreme Court candidates Pamela Karlan and Kathleen Sullivan of Stanford Law School are open lesbians was accurate, “I have to correct my text here to say that Kagan is apparently still closeted – odd, because her female partner is rather well known in Harvard circles.”

CBS News deleted the blog posting, but Domenech later questioned the White House attack in a column at the Huffington Post.

“I erroneously believed that Ms. Kagan was openly gay not because of … a ‘whisper campaign’ on the part of conservatives, but because it had been mentioned casually on multiple occasions by friends and colleagues – including students at Harvard, Hill staffers, and in the sphere of legal academia – who know Kagan personally.”

Domenech wasn’t alone in his belief that Kagan is a lesbian. Numerous blogs familiar to the homosexual community, such as, Queerty and On Top Magazine, have identified Kagan as “openly gay.”

Personal life

A report today from the Keen News Service posted on said the “composition of the Supreme Court is increasing critical to the LGBT (lesbian, gay, bisexual and transgender) civil rights movement,” noting three important same-sex marriage cases apparently are heading for resolution in the high court.

LaBarbera contends Kagan’s personal life is relevant to the marriage cases, and he renewed his call today for Kagan to answer the question “Are (or were) you a practicing homosexual?”

“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,” he argued.

LaBarbera noted “the popular mantra – even among conservatives – is that Kagan’s sexuality is ‘irrelevant.'”

Along with same-sex marriage cases, LaBarbera said Kagan would help decide other constitutional issues such as application of the First Amendment to a citizens’ right to oppose homosexuality.

But the leading homosexual-rights group Human Rights Campaign condemned public discussion of Kagan’s sexuality as a play “straight out the right-wing playbook.”

Michael Cole, a spokesman for the group, told the Huffington Post Kagan’s nomination would prove a money-maker for radical right-wing groups thanks to the lesbian rumors.

“Even though the majority of Americans couldn’t care less about a nominee’s sexual orientation, the far right will continue to be shameless with their whisper campaigns to drum up their base and raise money off of prejudice,” Cole said in an e-mailed statement.

‘Don’t ask’

LaBarbera and homosexual-rights activists, nevertheless, were in agreement on the relevance of Kagan’s decision in 2003 as dean of Harvard Law School to take sides with homosexual-rights protesters against military recruiters in protest of the military’s “Don’t Ask, Don’t tell” policy.

Americans assessing her as a Supreme Court nominee, said LaBarbera, “certainly have a right to know if her activism is driven by deeply personal motivations that could undermine her fairness as a judge.”

Kagan declared at the time that the military’s policy of not allowing homosexuals recruits to acknowledge their sexuality violated the university’s anti-discrimination policy.

“This action causes me deep distress,” Kagan wrote. “I abhor the military’s discriminatory recruitment policy.” It is, she said, “a profound wrong – a moral injustice of the first order.”

Her position, however, contradicted the Supreme Court’s unanimous ruling in support of the military recruiters.

In 2005, Kagan distributed a note to the Harvard Law School community explaining that the Department of Defense notified the university that it would withhold all federal funds if the law school continued to bar the military. She then reluctantly lifted the ban for the fall 2005 recruiting season.

“I have said before how much I regret making this exception to our antidiscrimination policy,” she wrote. “I believe the military’s discriminatory employment policy is deeply wrong – both unwise and unjust. And this wrong tears at the fabric of our own community by denying an opportunity to some of our students that other of our students have.”

Kagan also helped organize and moderate Harvard Law School’s 2007 Lambda Gay and Lesbian Legal Advocacy Conference, “Don’t Ask, Don’t Tell,” in which she was shown appreciation for her support of the homosexual community.

Kagan was introduced by Harvard law student Alexis Caloza, who thanked Kagan for “her continuing support for the lesbian, gay, bisexual, and transgendered community here at Harvard.”

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