Pres. Obama to nominate Elena Kagan to the Supreme Court

Elena KaganPresident Obama is expected to announce at 10 a.m. today that Elena Kagan is his nominee to succeed Justice Stevens on the Supreme Court.

Kagan is the president’s second nominee to the court and the second woman he has nominated. If she is confirmed Kagan will the the third woman on the Supreme Court, a record number of women for that body. I know, can you believe there have never been three women on the nine justice court at one time?

Kagan is a former Dean of Harvard Law School and the current Solicitor General. She is the first nominee in forty years who has not served as a judge, which is already raising concerns about her lack of a judicial record.

Media attention so far has focused on two issues. Kagan famously kicked military recruiters off Harvard campus in opposition to Don’t Ask Don’t Tell, though she let them back on campus when federal funds to the school were threatened. Kagan has been critiqued from the left for her positions on civil liberties and executive power. She expressed support of the Bush administration’s policy of “indefinite detention” of “enemy combatants.” This policy has allowed the holding, without due process, of people suspected of being terrorists. It is a dangerous attack on civil liberties that has led to clear human rights abuses by the U.S. and Kagan’s position should worry anyone concerned about human rights.

While Kagan’s positions on social issues are certainly left leaning – in addition to her position on Don’t Ask Don’t Tell she is openly pro-choice – her take on civil liberties means she will likely move the court slightly to the right.

Given the offensive mess of sexist and racist criticism hurled at Justice Sotomayor during her nomination process it makes sense to be concerned about identity-based rhetoric being directed at Kagan, though I certainly hope we will see a very different sort of conversation. Conservative writer Ed Whelan has already not-so-subtly compared her a prostitute for allowing military recruiters on Harvard campus after initially opposing their presence:

If Kagan genuinely believed that the Don’t Ask, Don’t Tell law was “a profound wrong–a moral injustice of the first order,” why would she make herself complicit in implementing the grave evil? Yes, of course, it’s true, as the article points out, that “barring the recruiters would [have] come with a price.” But, as George Bernard Shaw would have said to Kagan for selling out her supposedly deeply held principles, “We’ve already established what you are, ma’am. Now we’re just haggling over the price.” (My point isn’t that Kagan deserves the Bernard Shaw slam–she doesn’t–but rather that she evidently doesn’t believe her own rhetoric.)

Adam Serwer points out the big “duh” about Whelan’s comment and weak attempt to downplay the prostitute comparison:

Whelan hurriedly disclaims that Kagan doesn’t “deserve” the “Shaw slam,” but if he actually though that, he could have used another phrase. The point isn’t that the woman in the story doesn’t “believe her own rhetoric”; it’s that she doesn’t realize what a big whore she is.

During the Solicitor General nomination process there were rumors that Kagan is gay, which she has not publicly confirmed or denied but which are probably likely to come up as well. Boy do I wish I didn’t expect this kind of conservative attack.

While I am excited by the prospect of another woman being nominated to the Supreme Court, I do have some very real concerns about Kagan’s take on civil liberties. I hope her nomination process can be a serious discussion about important issues rather than a media circus around identity-based attacks, which took up far too much time and space during Justice Sotomayor’s nomination.

Boston, MA

Jos Truitt is Executive Director of Development at Feministing. She joined the team in July 2009, became an Editor in August 2011, and Executive Director in September 2013. She writes about a range of topics including transgender issues, abortion access, and media representation. Jos first got involved with organizing when she led a walk out against the Iraq war at her high school, the Boston Arts Academy. She was introduced to the reproductive justice movement while at Hampshire College, where she organized the Civil Liberties and Public Policy Program’s annual reproductive justice conference. She has worked on the National Abortion Federation’s hotline, was a Field Organizer at Choice USA, and has volunteered as a Pro-Choice Clinic Escort. Jos has written for publications including The Guardian, Bilerico, RH Reality Check, Metro Weekly, and the Columbia Journalism Review. She has spoken and trained at numerous national conferences and college campuses about trans issues, reproductive justice, blogging, feminism, and grassroots organizing. Jos completed her MFA in Printmaking at the San Francisco Art Institute in Spring 2013. In her "spare time" she likes to bake and work on projects about mermaids.

Jos Truitt is an Executive Director of Feministing in charge of Development.

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