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Elena Kagan: Internet Rumors Undermine Supreme Court Candidate Discussion

April 19, 2010

Today, Debbie Hines’s WMC Exclusive outlines the experience and background of the half dozen female candidates under consideration to fill the vacant seat soon left by Supreme Court Justice Stevens. The media and public are scrambling for information on the candidates, but online gossip has provided background noise that nearly drowns out serious analyses. A CBS blogger referred to Solicitor General Elena Kagan as potentially "the first openly gay justice" and The Washington Post then picked up the story. According to the Post, the White House was extremely critical of CBS “giving a platform to a blogger” and “applying old stereotypes to single women with successful careers.” Having engaged CBS on their coverage of women’s rights here at the Women’s Media Center, we can understand the criticism of where the “journalistic standards of CBS are in 2010” (and clearly they've become Focus on the Family's new best friend, as FOTF has vowed to oppose any gay nominee). However, just as the media should be focusing on real and measurable credentials, so the White House should be held accountable for dignifying the rumors with a response that focused on anything other than her credentials. Arguing that “Kagan is not a lesbian” is way below an administration that recently oversaw a downgrading of the military's Don't Ask Don't Tell policy. Elena Kagan is a leader in her field. The first woman to hold the position of Solicitor General, Kagan was also the first female dean of Harvard Law School, where she was a vocal opponent military recruiters who target college students, and argued against the inequity of the military’s “Don’t Ask, Don’t Tell” policy. Kagan spoke out at the time, saying "The military policy that we at the law school are overlooking is terribly wrong, terribly wrong in depriving gay men and lesbians of the opportunity to serve their country." As Kagan has argued in the case of the military, sexual orientation should have no bearing in the Supreme Court justice selection process. The Human Rights Campaign has spoken out against the media focus on Kagan's sexuality, calling it a play "straight out the right-wing playbook." "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," Michael Cole, a spokesperson for the group emailed in a statement to the Huffington Post. Responding to the blogosphere gossip, the White House may be exercising its right to correct what it deems rumors, but “defending the truth” in this situation should come with an acknowledgment that homosexuality is not only private but an ungrounded basis for criticism (see: Colin Powell’s endorsement of then-Presidential candidate Barack Obama amidst rumors about Obama's faith: "So what if he were Muslim?")  The White House should have countered CBS’s blog with support of their candidate, and an equally resounding message of tolerance and fairness for the American LGBT community, pointing out that a candidate’s sexual orientation holds no weight in their measurement of her qualifications as a potential Justice. The media and the White House need to spend less time covering rumors and more time letting it be known that, well, So what if she were gay? Just as we celebrated the first woman and the first Latina to serve on the Supreme Court – and, as Hines points out, we may have a chance to celebrate the first African American woman in candidate Leah Ward Sears – we look forward to the day when an openly gay Justice serves on the highest court in the nation. The Supreme Court requires fair representation: 2 women out of 9 Justices does not represent the 52% majority of women nationwide. The diversity of the United States deserves representative leadership, especially those interpreting and enforcing the words: “liberty and justice for all.”

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