Bring Back "Don't Ask, Don't Tell"

Emily Bazelon and Dahlia Lithwick of Slate have an interesting column exhorting us to trust authority and restore "Don't ask, don't tell" to its proper place - the selection of Supreme Court Justices.

The topic is the weird storm swirling around potential Supreme Court nominee Elena Kagan, former Harvard Law School Dean, current Solicitor General, and maybe (or maybe not!) a lesbian.

What creates the odd cross-currents is that proud progressives, including members of the GLBT community (and not to overlook the LGBT and LGBTQ communities) would like to claim her as one of their own.

And apparently sinister righties are hoping to convince the world she is gay, because we all know that is the kiss of death, right?  Don't we? 

Ms. Bazelon and Ms. Lithwick seem to think so - let's see how they courageously confront bigotry side-on:

At the same time, the White House may have disserved the cause by making such a fuss about the CBS piece. The real answer needn't be the insistence that Kagan is straight. It should be that it matters not one little bit. Period.

The White House may be hoping that Kagan's sexual preference is a nonissue for most Americans, especially at the moment when anti-gay-rights groups change their message from "we don't want gay-friendly nominees" to "gay nominees are all sinful," as Focus on the Family has just done.

Just say nothing - that's the fighting spirit!  And if someone says "Obama is black, and blacks are sinful", would these two defend him by saying he is half-white, or that it doesn't matter?  C'mon.

We are also assured that we ought to trust authority:

Whether or not the strategy works politically, the White House's announcement that Kagan isn't gay should end the matter, unless and until someone come up with some real proof to the contrary.

Why should that end it?  What, the White House wouldn't lie?  When did we enter that world?

Howard Kurtz of the WaPo reported the White House denial and left us with another question:

Ben Domenech, a former Bush administration aide and Republican Senate staffer, wrote that President Obama would "please" much of his base by picking the "first openly gay justice." An administration official, who asked not to be identified discussing personal matters, said Kagan is not a lesbian.

And how does that official know this - did he (or some White House vetter) specifically ask Kagan?  Was she asked this during the interview process for Solicitor General, did they ask her after the CBS column, or have they never asked her at all?  And why did they ask her if it doesn't matter - is that how progressives conduct job interviews these days?  

Oh, well - this can just be added to the list of things that progressives "know" are true because Obama said so.

As to the salience of her orientation - one might think that the gay agenda has stalled in the legislative process, so they will be heading back to the courts to look for friendly rulings (such as in California).  Now, one might argue that Ms. Kagan's record speaks volumes on her support for gay rights and that we know enough about her likely views without needing to know her personal orientation.  I would score that as "Maybe".

Most of the normal associations of a Supreme Court seat with various groups are pretty obvious.  When the President nominates a woman, or a black, or a Hispanic, or a Catholic, or a Protestant, or a Jew, there is not a lot of shadow-boxing and uncertainty about whether the nominee is or is not, in fact, a woman, or a black, or a Catholic.  The uncertainty lies in just how much influence that affiliation may have over decisions that come before the court.

It is difficult to think of a plausible analogy to the Kagan case, but here we go.  Suppose a nominee refused not only to answer questions about his personal views on abortion, but also refused to describe whether he was raised as a Catholic.  Would people really just cite religious freedom, focus on his public record and move on?  Or would reporters talk to his family and friends, go to his childhood schools, and generally exert themselves in an effort to pin this down?

There is nothing wrong with being a Catholic, but I think the public would expect a nominee to be forthcoming on that point; we are talking about a lifetime appointment, unlike with the Solicitor General.  But per the Slate women, gays are different.  So now we know.

OTHER THINGS WE KNOW:  I bet a closeted Republican would be outed, since in that context it is all about the hypocrisy.

BACK TO THE 50'S, or OH WHAT A TANGLED WEB WE (MIGHT OR MIGHT NOT) WEAVE:  Let me remind people of the circular logic in play not that long ago - gays were a security risk because their behavior was shameful (and illegal) and exposed them to the threat of blackmail.  If Ms. Kagan is that intent on preserving her privacy, then she is also at a bit of risk here, presumably.  Certainly if she tells a Senate committee that she is not gay she had better be telling the truth, or she will be vulnerable to a lifetime of pressure from those in the know.

A WORLD I WOULD RATHER AVOID:  Suppose Ms. Kagan provides the 5th vote in a 5-4 Supreme Court decision inventing a right to gay marriage and creating social divisions that leave us pining for the comity of the Roe v. Wade days; suppose we subsequently discover that she is a closeted gay.  Yike.

That said, I do think that societal attitudes about gay marriage are likely to change over time in a way that is unlikely to happen with abortion.  Neither science nor custom will resolve questions about when life begins or the soul of a fetus any time soon, but gay marriage polls as a generational question.  Consequently, a Supreme Court cramdown would only be dreadful for a while, but not forty years as with Roe.  Probably.  But I would still not choose to conduct that social experiment led by a stealth judge.

Comments

[Danube of Thought]

I await the questioning of the nominee on the scope of the Commerce Clause. I eagerly await it.

[MarkO]

Not that there's anything wrong with it.

Nevertheless, the comments that her partner is well known in Harvard circles tends to suggest that an intrepid investigative journist could uncover (ooops) the facts.

Until then, I suppose we will have to use the walks and quacks razor. (To look sharp and to feel sharp too . . ..)

[Danube of Thought]

If she's asked, I hope she declines to answer. It just seems beyond the pale to me.

[Ignatz]

--What, the White House wouldn't lie? When did we enter that world?--

You're kidding, right?

[Clarice]

We already have an asexual seat *ahem* covered, don't we?

[Jane]

If she's asked, I hope she declines to answer. It just seems beyond the pale to me.

Caro and I were debating this question on Friday. On One hand, assuming she follows the law, who cares? OTOH don't you have the obligation to let people decide on whatever basis they want - whether it be religion, or choice, or whether you are a socialist or sexual orientation.

In an effort to figure out our position we consulted the resident lesbian who said: "Of course they should ask her, why not?"

[Pagar]

In 2007 we had an US Senator arrested because someone thought he had committed "inappropriate behavior in a public bathroom",

and in 2010 it doesn't matter what a potential supreme court judge does? You've got to be kidding.

[Jane]

WEll it's not inappropriate to be gay.

[Tom Maguire]

We already have an asexual seat *ahem* covered, don't we?

I am afraid to ask, with Souter gone.

If she's asked, I hope she declines to answer. It just seems beyond the pale to me.

Asking about her race?

Sorry. If gay rights is a big agenda item for the court, how can it be off limits to ask about it?

Or to take my example, is it off limits to ask whether a nominee was raised Catholic?

I think that would be OK because it is widely accepted and impossible to conceal. But would it be wrong to ask if it could be concealed?

[Clarice]

He's gone but not forgotten, TM.

[Danube of Thought]

"If gay rights is a big agenda item for the court, how can it be off limits to ask about it?"

I don't say it's off limits to ask about gay rights. I say that asking a person under oath about her private sexual activity is off limits.

I've never heard of anyone being asked their race, because it can be ascertained without asking. But if a nominee's race were somehow in doubt, I think it would be inappropriate to inquire.

It's fine to ask if the nominee was raised a Catholic. It's not fine to ask whether or how often she prays.

[Charlie (Colorado)]

I'm reminded of the general reaction when Nathan Lane came out: "Wow. Who knew?"

Frankly, I think it's a scam. Now, she'll "come out" formally, maybe in her opening statement, and the line will form to praise her for her "courage" when she was "outed" by a "conservative blogger".

That line will, of course, form on the left.

After that, any criticism, of her positions, her previous actions, or her silly butch haircut, will be greeted with screams of "homophobia."

[Clarice]

I'm with DoT, but for a different reason:I really don't want to know about anybody's sex life. At all. Ever. If I'm sitting next to you on a plane. I didn't ask. You better not tell.
If I'm watching a parade. Remember, I don't want you to come out. I want you to keep it to yourself. And if in a moment of weakness I turn on a tv show and you are a host or a guest--button up, zip the lip, keep it to yourself, Jack and Jill.

But that's just ,e/

[Walter]

Clarice,

If that was the only thing he hid from us before confirmation, I would have enjoyed his term on the court quite a bit more than I actually did.

[Janet]

Dittos Clarice. Our Safeway had a sign celebrating gay and lesbian month last June. I wrote them..."This sign is inappropriate for a grocery store. Any sign celebrating any type of sex has no place in a grocery store......Please just focus on selling groceries."

[Clarice]

True, Walter..but he was the perfect candidate..all we knew is he went to Harvard Law school and lived in a rundown cabin with his mom. What could go wrong?

[Neo]

When I read the story about Elena Kagan, and how her friends, student and colleagues seemed to think that she was gay, but the White House said "no," I was left wondering if perhaps (I know this might be a stretch) Elena Kagan is possibly not gay and has been exploiting the notion of her associates that she is gay. Sort of like getting a free ride on the gay affirmative action bandwagon.

[nathan hale]

Btw, that strategy of turning Amish
____________, not happening, in the LUN

[Clarice]

Janet, you are more than welcome to share long distance travel with me. Pics of your family may be shared, however. I like that.

[Neo]

Question: if Elena Kagan is bi-sexual, besides doubling the chances of getting a date, does this mean she isn't gay ?

Just wondering. Knowing how the Obama White House likes to twist words, it would be just like them to say that being bi-sexual isn't being gay.

[Dave (in MA)]

http://paw.princeton.edu/issues/2008/11/19/obamawatchlist/Kagan_Headshot_hi-res.jpg>
http://l.yimg.com/l/tv/us/img/site/23/58/0000002358_20060919154812.jpg>
Don't ask.

[Janet]

If they show up in my Safeway this June I won't know what to do! Hahahaha

[Ignatz]

Hey Dave, that was my joke a couple days back, so at least I know I'm not the only one who sees the resemblance.

[Pagar]

The Supreme Court decides cases that affect our lives. Such as whether a human being can have their life ruined by someone else deciding that what they did in the privacy of a public restroom stall was inappropriate. Or whether the military has the right to enforce certain regulations. People with certain backgrounds are likely to have predetermined ideas that affect their rulings,IMO. I believe it would be inappropriate for America to not know that such background exists in a Supreme Court nominee.
Being gay is not the problem, it is how law cases are determined that is the problem.

[MayBee]

This White House is so petty. They went after Ben Domenech for his past plagiarism. Yes. JOE BIDEN'S administration went after plagiarism. The people who set up their cabinet using DORIS KERNS GOODWIN'S Team of Rivals puffery went after plagiarism.
The White House of Barack Obama, who got caught using bits of Deval Patrick's campaign speeches went after a blogger for plagiarism.
They are children.

[Ignatz]

--I've never heard of anyone being asked their race, because it can be ascertained without asking.--

DoT,
I think TM was making a (lame) pun on your 'beyond the pale' comment.

[MayBee]

Also, I am having this vague recollection of people implying John Roberts was gay based on...what..being in plays in college and wearing plaid pants or something. Anybody else remember that?

[Dave (in MA)]

Ignatz, I probably saw your post, so I credit you. ;-)

[Dave (in MA)]

The White House of Barack Obama, who got caught using bits of Deval Patrick's campaign speeches went after a blogger for plagiarism.

That's not plagiarism; it's just the byproduct of having the same handlers.

[nathan hale]

That is the more significant issue, what are her policy view, like being against ROTC at Harvard because of "don't ask don't tell" certainly her views of the gargantuan expansion of the commerce clause

[Dave (in MA)]

MayBee, my recollection is that the KOS/Du types were even making catty comments about his 4 year old son being gay.

[Danube of Thought]

I missed the pun, Iggy. (I was reading and posting on my I-phone from a podiatrist's office; that's my excuse and I'm sticking with it.)

With all of this hoo-haw, it's going to be anticlimactic if Kagan isn't the nominee.

[Jane]

People with certain backgrounds are likely to have predetermined ideas that affect their rulings,IMO.

Pagar,

I'd say that was a common ailment of liberals and conservatives. Don't forget, gays come in both persuasions.

[Clarice]

MayBee, As I recall, Roberts winced when the President made some remark about the Roberts son who was then off camera. There were comments in the usual back alley warrens that Roberts winced at the remark because his son was gay and he was ashamed. In fact, the kid was clowning it up off camera. He was 4 at the time IIRC.
Robin Gihvan, MO suck up deluxe, made some ridiculous remarks about how the Roberts kids were dressed--they were wearing standard upper middle class garb of the sort the press went gaga over when it was Kennedy kids wearing it.

[nathan hale]

he was four, and it turns out he was more mature than the press corps,

[Janet]

LOL narciso!

[Clarice]

DoT--Eugene Volokh suggested I contact other members of the conspiracy who'd addressed the issue. I did.

Here goes:
From: Ilya Somin
Subject: Re: Question on Obamacare
To: "Clarice Feldman"
Date: Monday, April 19, 2010, 2:23 PM

I think the answer is pretty obvious:

Jacobson is a case about state power, not federal power. So it has no relevance to the present case whatsoever. Federal power is limited by the scope of enumerated powers laid out Article I of the Constitution. State power isn't.

Fried also argues that the Commerce Clause provides authorization for the mandate, but gives no argument to support that. In fact, the activity regulated here is neither interstate nor commercial, nor even an activity at all. So the Commerce Clause does not authorize the mandate.

I am a big fan of Prof. Fried and his work. But he was not at his best here.

I have expanded on the Commerce Clause issue in more detail in various posts on the Volokh Conspiracy.

best,

[Jim Ryan]

Oh, for -

You couldn't make this stuff up.

[Clarice]

If you recall professors from about 26 top law schools filed suit to stop such recruiting , attacking the constitutionality of the Solomon Amendment which compelled it if the schools took federal funds. It was a meritless suit (the SC decided it 8-0. Kagan signed on to the suit but didn't write anything--I believe geniuses like Tribe did though.

She did demand the HLS abide by the Amendment when she was dean though.

[Jim Ryan]

She did demand the HLS abide by the Amendment

Good for her. I still wonder how the public will greet news that the new SC justice nominee wanted to ban recruiting at her Harvard.

[Extraneus]

Is Souter gay? How about Ed Koch? Janet Reno? Donna Shalala? Hillary?? Oprah???

For some people, it does seem pretty smart not to tell.

[Tom Maguire]

It's fine to ask if the nominee was raised a Catholic. It's not fine to ask whether or how often she prays.

Well, can we ask how often they go to church? I know we can ask whether he/she is a member of a golf club that excludes minorities or women. Golf clubs are not covered by freedom of association but church is?

I'm with DoT, but for a different reason:I really don't want to know about anybody's sex life.

I totally agree, but... both sides are intent on legislating on it while concealing their agenda and personal inclinations.

I think TM was making a (lame) pun on your 'beyond the pale' comment.

Take away the lame puns and I'd have no puns at all.

[bgates]

can we ask how often they go to church?

Article VI seems to say "no".

no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

[Danube of Thought]

Well, can we ask how often they go to church?

I would say no, although it might be a closer call than asking about prayer. And I think praying and church-going are both in an entirely different category than is golf-playing, and I don't see that freedom of association helps us answer either question. There are many things that I am free to do that are none of the public's business, and many that are not.

[Danube of Thought]

Thanks again, Clarice. Nice to see that Somin sees it as I do.

I'm not sure he could make this argument fly before a court: "In fact, the activity regulated here is neither interstate nor commercial, nor even an activity at all."

It depends on what you call the "activity." If you describe it as the provision of health care insurance and services, it's slam-dunk interstate. If you describe it as declining to buy insurance, it's a slam dunk the other way.

[matt]

I don't think the issue is homosexuality, but rather promiscuity and an aggressive agenda.

There's a hell of a difference gay Uncles George & Bob and the Folsom Street Festival.

[sbw]

What matters is how someone approaches the world we live in. Inconsistencies are worth examining. Double standards are worth examining. Underneath it all my be an unprincipled faulty intellect.

If I were questioning a supreme court candidate it might be worth bringing up a few of the current administration's inconsistencies to see if they can be detected by the candidate and labeled for what the bad behavior they represent.

[Extraneus]

I realize it's off-topic, but, well...

Vacationing a human right, EU chief says

The European Union has declared travelling a human right, and is launching a scheme to subsidize vacations with taxpayers' dollars for those too poor to afford their own trips.

[matt]

so is the right to party, according to the Beastie Boys, ext....

[Clarice]

Well DoT I don't know about you but when I prepared an appellate brief I spent most of my time honing the presentation of facts and the precise words I used to frame the issues.

[Extraneus]

Good point.

[Danube of Thought]

For sure, Clarice. But I don't think the way the "activity" is characterized in the briefs is going to determine what the court deems it to be.

[Clarice]

I always found it helped when the issues and facts were nicely framed.

[Porchlight]

no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Well...I look at it this way. No particular religion or lack there of should be required as a qualification. Meaning he doesn't have to be X or Y religion to become President.

But looking at the individual - if he professes to be a practicing Christian, I don't see why I can't use the evidence of such practice (or lack thereof) as information with which to judge his character. IOW if someone lies about himself for reasons of political expedience I think I'm entitled to take that into account when I decide what kind of person or politician I think he is.

[RJ]

But looking at the individual - if he professes to be a practicing Christian, I don't see why I can't use the evidence of such practice (or lack thereof) as information with which to judge his character. IOW if someone lies about himself for reasons of political expedience I think I'm entitled to take that into account when I decide what kind of person or politician I think he is.

This, to me, is the crux of the issue. Who one voluntarily associates with (and for what purposes), and those ideas one professes to espouse say a lot about the man or woman.

Issues of religion, morality, and ethics are primary determinants in who we marry, do business with, invite over to the house, etc. I see no reason why they should not be used by an informed electorate to judge whose who would seek to lead us.

ISTM that we have gotten to a place where our servants demand that we not only hold them to a lower standard, but are in fact wrong to assume that we get to choose to apply any standard.

I've really gotten to a place where I have come to detest the political class. They all seem to have the attitude of, "How dare the electorate hold us accountable for our actions?"

I'm telling you...twice a year we should haul these people through the streets of their districts in tumbrels, subject to as much verbal abuse and rotten cabbage as can be mustered. I think that would serve to remind everybody involved of the nature of the social contract we have with our politicians.

[MayBee]

Obama is going to Eulogize the W Va coalminers. Biden is going with him to the memorial service.

Why? I mean, I know why. But for heavens' sake...

[Extraneus]

If only Obama had done his job and protected those miners.

[Kanye West]

If only Obama had done his job and protected those miners.

Barack Obama doesn't care about coal miners.

[daddy]

Bite your tongue Extraneous!

">http://politifi.com/news/Making-Mining-Safer-425070.html"> During the Bush-Cheney years, however, Republicans moved closer and closer to the big energy companies -- including the coal corporations -- that sought to increase profits by decreasing health-and-safety regulations.
Now, with mine safety back on the agenda in a big way, following the deaths of of more than two dozen miners at Massey Energy's Upper Big Branch coal mine south of Charleston, West Virginia, GOP members of Congress have an opportunity to work with Democrats to do the right thing.

[Clarice]

Our old friends Fulton Armstrong and Ina Montes show up in this tale of the Dept of State still besetting Honduras.
< a href=http://online.wsj.com/article/SB20001424052702303491304575188471730143594.ht>Something's rotten in Tegucigalpa and that something is blown in from Foggy Bottom

[Danube of Thought]

It can't be a coincidence that Arlen Specter and Charlie Crist are two of the most loathsome, reptilian figures of the modern era.

[Jane says obamasucks]

I've really gotten to a place where I have come to detest the political class. They all seem to have the attitude of, "How dare the electorate hold us accountable for our actions?"

Arrogance! Arrogance! Arrogance!
Every last one of them should be tried and convicted.

[Clarice]

Yoo Hoo, narciso.
Check out O'Grady's opinion piece in todays wSJ about Fulton Armstrong, Ambassador Llorens and Honduras.

[Clarice]

Article LUN

[Janet]

Powerline has a good article up on identity group politics.

[Janet]

Porch and RJ...great comments.
IMO we are SO lacking honorable leaders. For me, when Rep. Joe Wilson yelled "You lie" at Obama, it was refreshing to hear such unvarnished truth. I am hungry for leadership that strips away the bs.

[Janet]

...and the Powerline article highlights why America needs to be leery. So many of the leftists rise to power within identity group politics...then when they reach a place where they must appeal to America as a whole they downplay their participation in the groups.

Still loyal to La Raza, GLSEN, SDS, ACORN,...but have to pretend they are not. In other words, a bunch of LIARS.

[nathan hale]

True, Janet, although Wilson's 'intemporate' outburst, was exactly what he wanted. He fares
less well when some one mocks him, he gets all
'wee weed up, you might say. To poke that pretense of self importance and arrogance, the way only a few can, I don't see Romney or Huckabee doing that

[Janet]

Me either nathan hale. Please Lord...not Romney or Huckabee!

[anduril]

It seems the Catholic Church was operating on a Don't Ask Don't Tell basis. Here's some useful information: Definitive Paper: Homosexuality at Root of Sex Abuse Crisis. What caused the problem for the Church was that, going back to the middle of the last century, very large numbers of homosexual males were accepted into the priesthood. The numbers don't lie. If your population group gets seriously skewed in a fundamental respect, you end up with problems. It's not celibacy that causes the problem, it's that the priesthood offered a comfortable refuge for these people and that screening procedures--or even the desire to so screen--broke down. Once in they have gained control of many of the institutional controls.