Michael Gaynor
Would Ted Weiss have approved of Elena Kagan's path to the Supreme Court bench?
By Michael Gaynor
May 12, 2010

President Obama campaigned as a supporter of traditional marriage, but his nomination of Ms. Kagan speaks louder that his campaign words.

Henry David Thoreau: "The lawyer's truth is not Truth, but consistency or a consistent expediency."

Senator Charles Schumer (D-N.Y.): "Do not let arguments of expediency persuade you. That is the slow road to oblivion. That is the tortured path to undoing step by step, bit by bit, as the river creates a canyon, the way of life that we love."

What is Solicitor General and Supreme Court nominee Elena Kagan's truth?

Is Ms. Kagan expedient?

Will Senator Schumer support Ms. Kagan for Supreme Court justice as he did for Solicitor General?

The answer to the last question is easy: Yes (because it is expedient for Senator Schumer to do so).

The record shows that Ms. Kagan is expedient, not consistent, even on the issue on which she has a clear public record, "gay rights."

In October 2003, military recruiters arrived on campus and Ms. Kagan, then Harvard Law School dean, emailed students and faculty that she "abhor[ed] the military's discriminatory recruitment policy" as "a profound wrong — a moral injustice of the first order." Whether right or wrong, she was clear.

But at her Senate confirmation hearing on February 10, 2009, when asked by Senator Jon Kyl (R-Ariz.) whether she would have defended the Solomon Amendment (the statute that permits funds to be cut off to universities that ban military recruiters) if she had been Solicitor General when the United States Supreme Court heard the case challenging the statute, Kagan answered: "There's a clear obligation on the part of the solicitor general to defend the statute in that circumstance unless there's no reasonable basis to argue for the statute. . . . Because I know the case . . . I feel comfortable saying, of course, there was a reasonable basis; I mean, my gosh, the Supreme Court ruled [unanimously]. So I absolutely would have defended that statute."

First, Ms. Kagan's explanation is more obviously flawed than the post hoc ergo propter hoc (after this, therefore because of this) logical fallacy. Ms. Kagan offered the unanimous Supreme Court ruling as assurance that she would have found that there was a reasonable basis for the statute, but that unanimous ruling could not have been known to her at the time she would have had to decide as solicitor general whether or not to defend that statute.

Second, before the Supreme Court ruled, the Third Circuit had held the statute unconstitutional, as Ms. Kagan (among many others) had urged in an amicus brief and Ms. Kagan had signed an amicus brief to the Supreme Court urging affirmance. Ms. Kagan believed that the Solomon Amendment violated the free speech rights of students and professors, but, at the hearing, not only beat a hasty retreat, but cited the Supreme Court ruling as evidence that she would have concluded that there was a reasonable basis for the statute after all.

So Ms. Kagan is either expedient, or very confused, or somehow believes that there can be a reasonable basis for "a profound wrong" and "moral injustice of the first order."

I think expedient, because Ms. Kagan is famously very intelligent and very careful, but none of the explanations is suitable for a Supreme Court Justice.

On February 10, 2009, then Judicial Confirmation Network Wendy E. Long, in an op-ed titled "Obama's Judicial Extremists" (www.washingtontimes.com/news/2009/feb/10/obamas-legal-extremists/) defined "the fog of constitutional law" (the strategy of the Obama Administration and Senate Judiciary Committee Democrats to win confirmation of nominees "far outside the American mainsteam"): "Smart, well-prepared lawyers who believe in a 'living Constitution' that accommodates their political preferences obfuscate their way through senators' questions, fogging up the issues instead of making them clear, all with a show of charm and ingratiating deference. And, when all else fails, making an Obama-like proffer of faux humility."

That day Ms. Kagan testified at her Senate Judiciary Committee confirmation hearing and Mrs. Long warned in her op-ed that Ms. Kagan had "charmed many in the conservative legal community, particularly in the academic world, by hiring a couple of conservative law professors in her capacity as dean of Harvard Law School" and would "doubtless turn on the constitutional fog machine when asked why she booted military recruiters off the Harvard Law campus."

Mrs. Long was right.

Mrs. Long: "She's vehemently against the Pentagon's 'Don't Ask, Don't Tell' policy...embraced by President Clinton — because it discriminates against homosexuals who want to be open about their sexual orientation while serving in the military. She calls the U.S. military's policy 'a moral injustice of the first order.' Wonder if she'll enforce the Defense of Marriage Act as Solicitor General."

Given Ms. Kagan's personal views, don't count on it.

Those who wonder why a nominee who has been careful not to publicize her legal views in general took a legal position on a prominent gay issue that was rejected, 8 to 0, by the United States Supreme Court should not obsess over whether Ms. Kagan is a lesbian. See Emily Rouhala, "White House Blasts CBS for Outing Court Candidate," April 16, 2010 (www.newser.com/story/86205/white-house-blasts-cbs-for-outing-court-candidate.html).

To dispel the mystery, they should check Ms. Kagan's employment history and take a hint from the political views of the politician for whom the young Ms. Kagan chose to intern.

In 1978 Ms. Kagan interned for Congressman Ted Weiss (1927-1992), a radical Democrat who represented the West Side of Manhattan. Weiss was a key backer of the 1979 National March on Washington for Gay and Lesbian Rights. The platform included the so-called Five Demands: (1) Pass a comprehensive lesbian/gay rights bill in Congress; (2) Issue a presidential executive order banning discrimination based on sexual orientation in the federal government, the military, and federally contracted private employment; (3) Repeal all anti-lesbian/gay laws; (4) End discrimination in lesbian-mother and gay-father custody cases and (5) Protect lesbian and gay youth from any laws which are used to discriminate, oppress, and/or harass them in their homes, schools, jobs, and social environments.


"The march served to nationalize the gay movement, which had previously been focused on local struggles. This spirit is invoked in the closing paragraph of the welcome program of the march.

"'Today in the capital of America, we are all here, the almost liberated and the slightly repressed; the butch, the femme and everything in-between; the androgynous; the monogamous and the promiscuous; the masturbators and the fellators and the tribadists; men in dresses and women in neckties; those who bite and those who cuddle; celebates[sic] and pederasts; diesel dykes and nelly queens; amazons and size queens, Yellow, Black, Brown, White, and Red; the shorthaired and the long, the fat and the thin; the nude and the prude; the beauties and the beasts; the studs and the duds; the communes, the couples, and the singles; pubescents and the octogenarians. Yes, we are all here! We are everywhere! Welcome to the March on Washington for Lesbian and Gay Rights!'

"The march....was led by the Salsa Soul Sisters, who carried the official march banner. Speakers and artists who spoke at the main rally included Harry Britt, Charlotte Bunch, Allen Ginsberg and Peter Orlovsky, Flo Kennedy, Morris Kight, Audre Lorde, Leonard Matlovich, Kate Millett, Troy Perry, Eleanor Smeal, and Congressman Ted Weiss....

"In addition to the march itself, the organizers arranged three days of workshops featuring artistic events, strategy sessions, focus groups on specific issues of women and minorities within the LGBT community, consciousness raising, local organization, religion and other issues. The Monday after the march was organized as a 'Constituent Lobbying Day' in which over 500 participants attempted to contact every member of Congress to express support for gay-rights legislation. The participants successfully met with fifty senators and more than 150 house members."

Yes, President Obama campaigned as a supporter of traditional marriage, but his nomination of Ms. Kagan speaks louder that his campaign words.

© Michael Gaynor


The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
(See RenewAmerica's publishing standards.)

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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)


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