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April 16, 2010

Is sexual orientation directly relevant to judicial philosophy and SCOTUS duties?

The question in the title of this post is prompted by this (important?) new Washington Post article, which is headlined "White House complains about CBS News blog post saying that possible Supreme Court nominee is gay."  Here is how the article begins:

The White House ripped CBS News on Thursday for publishing an online column by a blogger who made assertions about the sexual orientation of Solicitor General Elena Kagan, widely viewed as a leading candidate for the Supreme Court.

Ben Domenech, a former Bush administration aide and Republican Senate staffer, wrote that President Obama would "please" much of his base by picking the "first openly gay justice." An administration official, who asked not to be identified discussing personal matters, said Kagan is not a lesbian.

CBS initially refused to pull the posting, prompting Anita Dunn, a former White House communications director who is working with the administration on the high court vacancy, to say: "The fact that they've chosen to become enablers of people posting lies on their site tells us where the journalistic standards of CBS are in 2010." She said the network was giving a platform to a blogger "with a history of plagiarism" who was "applying old stereotypes to single women with successful careers."

The network deleted the posting Thursday night after Domenech said he was merely repeating a rumor. The flare-up underscores how quickly the battle over a Supreme Court nominee -- or even a potential nominee -- can turn searingly personal. Most major news organizations have policies against "outing" gays or reporting on the sex lives of public officials unless they are related to their public duties.

A White House spokesman, Ben LaBolt, said he complained to CBS because the column "made false charges." Domenech later added an update to the post: "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."

I find notable for a number of reasons this story surrounding the perceived front-runner to replace the retiring Justice Stevens.  Most fundamentally, I am intrigued by the apparent eagerness of White House officials to make assertions about the sexual orientation of Solicitor General Elena Kagan, rather than simply asserting that sexual orientation is not directly relevant to judicial philosophy and the day-to-day work of a Supreme Court Justice.  That decision prompts the question in the title of this post on which I am eager for (respectful) reader reaction.

April 16, 2010 at 10:27 AM | Permalink


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"I am intrigued by the apparent eagerness of White House officials to make assertions about the sexual orientation of Solicitor General Elena Kagan, rather than simply asserting that sexual orientation is not directly relevant to judicial philosophy and the day-to-day work of a Supreme Court Justice."

Nailed it.

I think this kind of attack on a potential nominee is about in the same boat as the attacks on Alito because he would make for "too many Catholics."

Posted by: Bill Otis | Apr 16, 2010 10:40:13 AM

Here's a question: if Ms. Kagen were a pedophile would that be relevant? Why or why not?

Pedophilia is just as much a "sexual orientation" as being heterosexual or being homosexual.

As it was said by Orwell, "some sexual orientations are more equal than others".

Posted by: Daniel | Apr 16, 2010 11:06:38 AM

I am intrigued by the apparent eagerness of White House officials to make assertions about the sexual orientation of Solicitor General Elena Kagan, rather than simply asserting that sexual orientation is not directly relevant to judicial philosophy and the day-to-day work of a Supreme Court Justice.

If they say “it is not relevant,” many people will take it as a tacit admission that she is, in fact, a lesbian. Since there are many people who shudder at the thought of gays on the Supreme Court, there is no point in phrasing the denial in such a way that will feed their prejudice.

Posted by: Marc Shepherd | Apr 16, 2010 11:07:18 AM

If Ms. Kagen were a pedophile would that be relevant? Why or why not?

Pedophilia, if you act on the impulse, is illegal. Homosexuality is not.

Posted by: Marc Shepherd | Apr 16, 2010 11:08:56 AM

Marc --

Your last post is the correct, and obvious, answer.

Your prior post is, I think, somewhat off the mark. What I would say, were I back in the White House, is nothing whatever.

You defend the nominee when you have a nominee. Before then, silence is golden.

Posted by: Bill Otis | Apr 16, 2010 12:07:19 PM

me i figure she's already an TRAITOR after that who cares if she's a little queer!

Posted by: rodsmith | Apr 16, 2010 12:52:54 PM

Reminds me of the response when Obama was accused of being a Muslim or an Arab--"no, he's not." How about: "Why the hell does it matter?"

Posted by: Res ipsa | Apr 16, 2010 3:28:29 PM

I think some of us are misreading the White House here; they are responding to journalistic malpractice and respecting Ms. Kagan's right to determine herself whether she wants to declare her sexual orientation, whatever it may be. In that context the response is the only respectable one.

The "newsperson" reported rumors that had no confirmation-- it was simple gossip posted on the website of CBS News (not some gossip blog). It is crap journalism and they had to respond, for failure to respond would look like confirmation- confirmation of a "fact" that is not (or is) true. So it is in the context of an epic screwup by CBS ("reporting" unconfirmed rumors that by their nature are sensational- hence the term sensationalism) that the response was necessitated.

The issue then is what response to make. Is the administration supposed to confirm she is gay- in essence outing her where she has not chosen to do so? Or confirm she is straight? Or let her determine herself, as many believe is the responsible approach, whether she wants to discuss her sexuality at all.

Whether one agrees with the approach or not, I think it is erroneous to suggest that the White House is making assertions about her orientation. I believe they are making assertions about CBS.

Posted by: Matt | Apr 16, 2010 4:44:12 PM


Great lawyer way to avoid the question: if you act on it. There are laws against rape and laws against molestation. But I never asked if your views of Ms. Kagen be different if she had committed such crimes. It is entirely possible to have a sexual orientation and never act on it. There is nothing in the word "orientation" that implies anything about behavior, criminal or no

The question in Doug's post was not should Ms. Kagen's behavior be at issue. The question was should her orientation be at issue. So again, would your views be any different if Ms. Kagen declared that pedophila was her sexual orientation.

Posted by: Daniel | Apr 16, 2010 7:05:10 PM

Daniel --

Marc of course can answer for himself, but I can tell you this for sure: If Ms. Kagan were to announce that her orientation is pedophilia, Obama would withdraw her nomination (if one is made) in five minutes and she would be forced to resign as SG. She would also be bounced as Dean at Harvard Law.

Posted by: Bill Otis | Apr 17, 2010 9:00:27 AM


Exactly. And the result would be the same if she declared she was into bestiality. So don't tell me that sexual orientation does not or should not matter. Of course it does and of course it should. What Doug really wants to ask is should a *particular* sexual orientation matter, in this case homosexuality. That's a very different question. It's also a much more difficult question because then one has to explain why a homosexual orientation deserves preferential treatment vis a vis other sexual orientations.

Posted by: Daniel | Apr 17, 2010 11:02:16 AM

Daniel --

You have a point. Whether a person is a viable nominee for a prominent and powerful public job depends, at a baseline, on whether the person shares a general outlook on life that most of the people can relate to. Bestiality and pedophilia do not fill the bill; they are practiced, so far as I know, by only a tiny percentage of the population, and are regarded by a huge majority as vile.

Homosexuality is a different matter. I have no clue as to how much of the population is homosexual, but I've heart that it's roughly ten percent, maybe somewhat less. But most of the population, I think, has a friend or relative or co-worker who is gay. It is therefore far more accepted than bestiality or pedophilia.

Whether it is sufficiently accepted for a Supreme Court nominee to be confirmed is a really interesting question. I just don't know. My personal view is that, if a nominee can TRULY put aside his or her own preferences -- on gay marriage or the DP or whatever -- and is otherwise qualified by experience, intellect and temperment, then homosexuality should not per se be a bar to serving on the Court.

Posted by: Bill Otis | Apr 17, 2010 11:38:18 AM


If homosexuality is a potential bar to serving as a judge because of some theoretical conflict of interest, then so is heterosexuality. Why is a gay judge any less trustworthy to tackle a case on equal protection for gay men and lesbians? Should Marshall have recused himself from cases involving race? Would you say the same about Thomas?

Daniel: What preferential treatment do you think LGBT people receive in this country? I'm dying to know.

Posted by: Alec | Apr 18, 2010 2:05:47 AM


They are not locked up for life like most pedophiles. I'd say that's preferential treatment.

Posted by: Daniel | Apr 18, 2010 2:24:55 AM

Gays have incomes a full standard deviation above the mean. Their wealth buys politicians to impose their anti-family agenda on everyone, down to kindergarten students. They are forcing insurance companies, prisons, and other payers to fund sex change operations. The desire to have a sex change is a desire to look better, no more valid than wanting a nose job or liposuction. When homosexuals take the reins of state, tyranny follows, as with the Nazi Party hierarchy, including Adolf Hitler, Yassir Arafat, as with Lincoln, Cardozo who grew the size of government.

The homosexual lawyer agenda complements the feminist lawyer anti-family agenda. The family is a competing source of authority to government, and must be crushed by the lawyer. The government is a wholly owned and managed subsidiary of the criminal cult enterprise, and serves its purposes first and above those of others.

Posted by: Supremacy Claus | Apr 18, 2010 10:56:09 AM

Alec --

Perhaps you misread my post. What I said was that, if a nominee can truly put aside his or her own preferences -- on gay marriage or the DP or whatever -- and is otherwise qualified by experience, intellect and temperment, then homosexuality should NOT per se be a bar to serving on the Court.

No I don't think a black Justice should be recused from a race case. And I don't think a Catholic Justice (e.g., Scalia, Roberts, Alito) should be recused from an abortion case, even though the pro-abortion groups complain about this all the time.

Now let me ask you this: Do you think an unacted-upon predeliction toward pedophilia or bestiality should be a bar to serving on the Court?

Posted by: Bill Otis | Apr 18, 2010 1:49:34 PM


They don't prey on children.

Supremacy Claus,

Are you also a fan of the Protocols?


No, I don't think that should be a bar, nor is it a relevant question that would come up. Questions about family life do, though. My point is, if gays can't be trusted to "set aside" their preferences on questions about gay marriage, neither can heterosexuals be trusted to answer the question as to what scrutiny sexual orientation classifications should be subject to.

And point blank guys, the references to bestiality and pedophilia are offensive.

Posted by: Alec | Apr 18, 2010 5:19:52 PM

Alec --

I do not intend the references to bestiality and pedophilia to be offensive.

The discussion here is about whether persons having sexual predelictions shared only by a minority of the population are qualified to sit on the Supreme Court. Limited to that narrow context, I think it's OK to consider varieties of sexual predelictions.

In my view, a person holding the power of a Supreme Court Justice must share a bedrock view of human nature held by a majority, or at the minimum a large minority, of the people who will be bound by his rulings. Thus someone into pedophilia or bestiality is disqualified and under no circumstances would I vote for them. Homosexuality is a different matter. The vast majority of the population is not homosexual, but according to Gallup, a significant majority considers homosexuality an acceptable lifestyle (57%-40%).

The reason it is sensible to consider whether a gay candidate could set aside his or her sexual orientation, while it would not be sensible to ask the same of a heterosexual candidate, is that heterosexuality is the behavioral norm, and no one is proposing or litigating laws that would allow heterosexuals to to A or would ban them from doing B.

Posted by: Bill Otis | Apr 18, 2010 8:12:06 PM


Pedophiles don't prey on children. Child molesters prey on children. Not all pedophiles are child molesters. Ergo, you are in error.

If you find references to pedophilia and bestiality offensive, grow up. They are real sexual orientations just like homosexuality. Given the large number of people in this world who find homosexuality offensive, homosexuals and their allies of all people should be sensitive to remarks that animal lovers and pedophiles are engaged in "vile" acts. The fact that you are not sensitive to that reality does not redound to your credit.

Posted by: Daniel | Apr 18, 2010 9:19:54 PM


I wonder if you really believe what you wrote. In 1980 the poll numbers would have been reversed. In 1980 child pornography was in legal circulation yet sodomy was outlawed. Public opinion is a fickle master. It's something that people tend to forget, much to their peril.

In another thread you lamented that we live in an age of procedures and longed for more substantive justice. Are poll numbers the foundation on which you plan to lay the foundation for that more substantive justice?

Posted by: Daniel | Apr 18, 2010 9:26:50 PM

Daniel --

Public opinion may indeed be a fickle master, but in a democracy the majority calls the shots. Thus, who is acceptable on the Supreme Court may well be different now from what it would have been 30 years ago. But this vacancy is going to be filled now, not in the past or future.

No one has a Constitutional right to a Supreme Court seat. The public has to feel that the nominee is either in the mainstream or real close to it -- whatever today's mainstream may be. Pedophilia and beastiality are out. Homosexuality arguably is in. Since I'm neither a sociologist nor a pollster, I don't know. I can tell you that I personally would have had no trouble arguing a criminal case before a gay judge, 30 years ago or now.

Posted by: Bill Otis | Apr 18, 2010 10:32:29 PM

If prior associations and proclivities were a bar to appointment and admission to the Supreme Court then we would not confirm today: Oliver Wendell Holmes because of his acknowledged stash of pornography; Earl Warren for his role as Governer of California in WWI for locking up Japanese heritage American citizens; Hugo Black for his membership in the KKK; William Douglas for his role in the Securities and Exchange Commission. There are perhaps other great and good Justices who had strange or bad things in their resumes and backgrounds. Some on this blog could chime in.

In the scheme of things, my favorite judges are Earl Warren, Hugo Black. Obama should find us someone of that caliber and forget the: Yale or Harvard credential; the Appellate Judge credential usually from the DC Circuit; the no name no blame credential; the political credential which ties the nominee to some schmuck in Congress like Danforth who sponsors some guy whom he mentored like Justice Thomas; the Rehnquist guy who challenged hispanic voters at the polls (some credential); the disaster like Taney who brought us into civil war.

I would like to see a nominee with political background, and by that elected to some office or married to one (Hillary), with broad views on life, liberty and pursuit of happiness not tainted by living by the rules and living to obey and living to submit and living to please-- like most of those chumps from Yale and Harvard who clerked for a Supreme Court Judge and found their silky way to a Circuit Court of Appeals judgeship under either the Republicans or the Democrats.

In the end, for me, this little folk down in the country, I do not think that some aspect of some nominees life pertaining to which sex they want to bed with is relevant to the big issues. Klansman Hugo turned out pretty good for the African Americans and the little people. Warl Warren atoned for his sins against the Japanese whom he ordered rounded up after Pearl Harbour (I think in his role as atty General not Governor). Holmes might have had a stash of porn in his office but he "knew it when he saw it". Justice Douglas might have been a tree hugger and on the other side of his aisle a regulator of the Securies business, but he was a fine Justice.

The current bench is filled with Yalie/Harvard, Clerked for bla bla (their predecessor), sucked their way up the line, got appointed for their ass kissing to the DC Circuit or some Circuit, and whimped their way into confirmation by the Senate. Other than the Confrontation Clause jurisprudence, this Court has been very timid, lame, conservative, and lazy (75 opinons a year for Nine Justices and their assorted staff).

Posted by: mpb | Apr 19, 2010 11:41:59 PM

how true if you look at our history most of our founding fathers were slaveowners i'm sure they sampled the property they owned that makes the rapist! a large number married young brides as young as 12-14 yers old that makes them CHILD MOLESTERS! If they were alive today all they would be is NUMBERS IN A PRISON!

if you really want to come down to it the goodie-goodies of today should get on their knees and kiss the feet of those evil child molesters after all THEY CREATED this country your in the proces of STEALING.

Posted by: rodsmith | Apr 20, 2010 2:59:05 AM

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