The number of results from a Google search of “Elena Kagan” plus the word “gay” more than doubled from 722,000 on Monday, when President Obama nominated her to the U.S. Supreme Court, to 1,950,000 on Tuesday night, when Politico.com reported two friends said she is not gay.
Many of the results are articles and blogs discussing whether Kagan supported gay civil rights to the detriment of the military—a discussion that will clearly be a matter of intense focus during her confirmation hearing.
Sen. Jeff Sessions (R-Ala.), the ranking Republican on the Senate Judiciary Committee, put that at the top of his list Monday in reacting to the nomination. And efforts to complain about her lack of experience as a judge are running up against an embarrassing reality—former Chief Justice William Rehnquist never served as a judge prior to joining the Supreme Court; Chief Justice John Roberts served only two years; and Justice Clarence Thomas served barely one.
But the White House has taken an aggressive posture against efforts to thwart Kagan’s nomination by painting her as some kind of pro-gay, anti-military radical.
White House Press Secretary Robert Gibbs acknowledged during Tuesday’s routine press briefing that the White House submitted a commentary for publication in Tuesday’s Wall Street Journal to publicize the facts surrounding Kagan’s actions, as dean of Harvard Law School, with regard to military recruiters.
“We sent this out… because there’s people that either don’t know or are unwilling to understand the facts,” said Gibbs. “The military had, through a student organization, access to Harvard Law School students. And the semester in which they did not have access to the Office of Career Services actually saw an increase in the number of Harvard Law School students that joined the military.”
The essay in the Wall Street Journal did not make that latter point, but it did paint a picture of Kagan’s efforts to defend Harvard’s non-discrimination policy against the military’s “Don’t Ask Don’t Tell” policy as a more passive one than news reports have painted previously.
The commentary, written by Robert Clark who dean of Harvard Law just prior to Kagan, said Kagan merely “followed” a policy that was “already in place” since 1979. That policy, he said, barred employers from recruiting on campus unless they signed a statement agreeing not to discriminate based on various factors, including sexual orientation. Although the military refused to sign such a statement, said Clark, Harvard Law did allow military recruiters some limited access to recruit through the Harvard Law School Veterans Association.
In 1996, Congress passed the so-called Solomon Amendment to withhold federal funding from any university that barred military recruiters. Clark said Harvard Law relented so as not to jeopardize that funding for the entire university but that the school issued a statement each year expressing its disapproval of the military’s discriminatory policy.
When Kagan became dean in 2003, he said, she continued that policy—of allowing military recruiters but expressing disapproval of Don’t Ask Don’t Tell.
“Military recruiters used [campus recruiting] services,” wrote Clark, “but at the beginning of each interviewing season, [Kagan] wrote a public memorandum explaining the exception to the school’s nondiscrimination policy, stating her objection to ‘don’t ask, don’t tell,’ and expressing her strong view that military service is a noble and socially valuable career path that should be encouraged and open to all of our graduates.”
Clark said “it would be very wrong to portray Elena Kagan as hostile to the U.S. military. Quite the opposite is true.”
Meanwhile, Politico.com has the first sourced information purporting some knowledge of Kagan’s sexual orientation.
In a column posted late Tuesday night, Politico writer Ben Smith quotes Kagan’s former law school roommate, Sarah Walzer, as saying, “I’ve known her for most of her adult life and I know she’s straight.”
Walzer does not indicate that she’s speaking at Kagan’s request or on her behalf, but she offers, as evidence, that Kagan “dated men when we were in law school, we talked about men—who in our class was cute, who she would like to date, all of those things.”
Smith said Walzer agreed to be interviewed “after Kagan’s supporters decided they should tactfully put an end to the rumor” that Kagan is gay.
That rumor, which is fairly common about many people in public life, gained some traction with Kagan because she is 50 and unmarried and because the CBS News website posted a blog last month claiming that, if confirmed, Kagan would be the “first openly gay justice.” The White House quickly informed CBS the report was inaccurate, CBS took the post down, and the conservative blogger who wrote it apologized.
The Politico story also quoted another Kagan friend—the notorious former New York Governor Eliot Spitzer—as saying he, too, knew Kagan dated men at Princeton.
Kagan herself has made no public identification of her sexual orientation. Some LGBT activists reportedly expressed dismay that many news reports Tuesday ran a photo of Kagan playing baseball. The 1993 photograph, from the University of Chicago Law School, shows Kagan at the plate, holding a well-informed batting stance.
John Wright, news editor of the Dallas Voice, a gay newspaper, criticized the Wall Street Journal’s use of the photo. As he explained to Politico, “I think the newspaper, which happens to have the largest circulation of any in the U.S., might as well have gone with a headline that said, ‘Lesbian or switch-hitter?'”
The photo got more than a little notice and use by a number of news outlets Tuesday, including MLB.com. The website of major league baseball, asked several professional baseball players to assess Kagan’s batting stance from looking at the picture. New York Mets outfielder Jeff Francoeur said he thinks “she’s choked way too far up” on the bat, but most players asked said they thought she had a pretty decent stance. Some noted that it’s important to see a batter in action to get a full assessment.
“Batting stance looks OK,” said Ivan Rodriguez, a catcher for the Washington Nationals, “but I don’t know the swing.”