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Friday, May 14, 2010

My Class Reunion, Elena Edition

It's like a class reunion. My law school classmate Elliot Spitzer swears he didn't date Elena Kagan. Now my classmate Ruth Marcus swears Kagan is not gay (and neither is Ruth, she makes sure to note).

The main point of Ruth's column is that it's tough out there for middle-aged women who never have been married, and it often has to do with men being afraid of women who are smarter than they are. I'll concede the former point, but not the latter.

But Ruth also makes this interesting observation (emphasis mine):

From my (straight, married mother) point of view, a gay justice would be a benefit to the court and the country. To the country because it would speed up the inevitable: acceptance of gay Americans in all walks of life. To the court because -- as with any additional perspective -- an openly gay justice would add to the richness of the court's understanding of cases, particularly gay rights cases, that come before it.
So does that mean being gay IS relevant to judicial decision-making on important constitutional issues such as gay marriage, and therefore, the public is entitled to know? And if so, why should it make a difference whether the person is "open" or not?

That seems to be Andrew Sullivan's point, for which he has been excoriated.

Such is the problem when one plays identity politics. It is hard to argue that the identity is relevant to judicial decision-making, yet argue the public is not entitled to know the identity.

And for the record, neither Sullivan nor Kagan was my law school classmate, not that there would have been anything wrong with it.

Related Posts:
Kagan Said She Meant What She Said About Gay Marriage
Clinical Law Profs Don't Even Count As 3/5ths Of A Person

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  1. They used to be called spinsters and respected, but now are assumed to be gay.

    I don't know if the openly gay representative in Congress does much to convince me one way or the other that homosexuality adds anything to good governance or the richness of Congress (it seems some of his decisions has made us quite poor).

    If the prospect of the court finding a right to gay marriage is what matters, what's wrong with Ted Olson or Ken Starr? Do you really have to be a lesbian or homosexual to be sufficiently sensitive and understanding?

  2. As the years go by I become less tolerant of the lesbians and homosexuals wanting to be like heterosexuals but with all the trappings of being a protected class. Special but normal but special. The enormous amount of time and energy wasted on legalizing the physical mechanics of their sex life is a drain. In my younger years, I was all about live and let live, but that was when it wasn't minimilizing the HUGE problems we really face. I'm weary of the conversation about the heterosexual insensitivity of the Gay relationship.

    Best of luck to all. I see how well, the out of wedlock and fatherless children are fairing from that other great human relationships experiment that they were pushing when I was young.

    Some human being stuff can't ever be settled as absolutes by law and please everyone. Some liberals think the Constitution is a living document, to grow and change as demands by current events and popular minority whim. Marriage is open season, to current events and popular minority whim too. How's that working out.

    I don't think I'll have another 40 years to see how well this new human relationships experiment will turn out. Could it be any worse than our current problem of complete fiscal bankruptcy with the 3rd generation of 'out of wedlock and fatherless'.

    Either way, what would Elena Kagans sexual orientation save?

  3. Volokh has a link to a letter Miguel Estrada wrote to Leahy and Sessions fully supporting Kagan. Yep, the conservative whose nomination to the Court of Appeals went down in flames to a Democratic filabuster ostensibly because he lacked judicial experience, is now fully embracing a liberal nominee with no judicial experience to the SCOTUS.

    Thanks to how unfairly the Democrats play, Estrada will forever be an asterick in history while Kagan will be re-shaping American policy for the next 40 years.

    Conservatives always allow the left to drag us further and further to the left. As one of the commenters at Volokh said, the left simply wants it more.

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  5. boy my previous post was a lot longer than I thought it was. Here's a better, short version:

    The Law is not supposed to be personal, it's not supposed to be a "respecter of persons". It seems to me that debates about nominees' personal lives interfere with that. I think our Supreme Justices deserve as much privacy and freedom from need to posture or to behave or be seen as we can possibly give them. The release from political or public pressure contributes (or should contribute) to decision making on their learned, reasoned and communally considered understanding of US legal history and principles.

  6. " it's tough out there for middle-aged women who never have been married, and it often has to do with men being afraid of women who are smarter than they are"

    I guess it's tough when no one wants what you're selling. But to claim it is because of some sexist based fear?

    Maybe it's because any one who has made it their life's pursuit to dabble in the intellectual/ academic/ political world isn't likely to share the same interests and goals as most normal people. Women who are satisfied with being "trophy wives" and enable and support the powerful and connected males in our society don't exactly get a lot of respect from any one, and yet males who refuse to do the same are supposed to be "afraid"? Is that the kind of taunt designed to get the males going, "Oh yeah? Well watch this." Challenge their manliness, their courage,...sure.

    Maybe Kagan is a fascinating dinner party companion, great conversaltionalist. Neither of which qualifies her for being a life-companion in my book. She's lived her whole life in an artificial world of ideas, and based on her socialist bent, apparently little practical real world experience. If she'd done a stint as a waitress rather than Harvard Law School dean, I'd have a little more confidence in her good judgment.