Elena Kagan Lesbian Rumor Smear Neither Smear Nor Rumor

Elena Kagan Supreme Court?A week ago, Ben Domenech wrote a blog post about ten candidates rumored to be on the short list of nominees for replacing John Paul Stevens on the Supreme Court.  He asserted that Elena Kagan, Obama’s Solicitor General who is reputedly at the top of said list, “would please much of Obama’s base” and “follows [the] diversity politics of Sotomayor with [the] first openly gay justice.”   CBS News then secured permission to republish said post as a column in their online opinion section, which they did for Thursday’s edition.

All hell broke loose.

The White House went into attack mode against conservatives and CBS.

The Obama administration charged CBS News with being out of line Thursday for suggesting that possible Supreme Court nominee Elena Kagan is out of the closet. She isn’t, according to a White House official, suggesting that a rumor campaign was being waged to trip up a potential Court candidacy.

[…]

Domenech later added an addendum stating, “I have to correct my text here to say that Kagan is apparently still closeted — odd, because her female partner is rather well known in Harvard circles.”

Then CBSNews.com added an editor’s note confirming, “A White House spokesperson said that Domenech’s reference to Ms. Kagan as gay is innaccurate.”

Gay rights groups weighed in, too, about the “whispering campaign.”   HuffPo’s Sam Stein:

Leading gay rights group are accusing Republicans of trying to rile up their conservative base by launching a whisper campaign against potential Supreme Court Justice Elena Kagan — suggesting the current Solicitor General is a closeted lesbian even though she’s not.

In its first entree into the upcoming Supreme Court nomination process, the group Human Rights Campaign blasted the increasingly public discussion of 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

In a separate interview, Jean-Marie Navetta, spokeswoman from PFLAG — Parents, Families & Friends of Lesbians and Gays — accused people of trying to manufacture scandal out of thin air. “People love taking part in rumors like this, whether they’re gay or not, because it implies that there’s some sort of scandal going on there. And the bottom line is, it doesn’t matter and it shouldn’t matter,” she said. “But we hear it all the time… it’s a gossip point for people. And I think it could certainly be used, or be perceived to be used by some as a way to discredit [Kagan], even though we all know that it does not matter and it should not matter.”

CBS eventually bowed to pressure and pulled the posting altogether.    Not appending an editor’s note to the top correcting the story.  Not replacing the story with a placeholder explaining what happens.   Poof!  404!

kagan-lesbian-cbs-news-404

WaPo’s Howie Kurtz explains:

CBS initially refused to pull the posting, prompting Anita Dunn, a former White House communications director who is working with the administration on the high court vacancy, to say: “The fact that they’ve chosen to become enablers of people posting lies on their site tells us where the journalistic standards of CBS are in 2010.” She said the network was giving a platform to a blogger “with a history of plagiarism” who was “applying old stereotypes to single women with successful careers.”

The network deleted the posting Thursday night after Domenech said he was merely repeating a rumor. The flare-up underscores how quickly the battle over a Supreme Court nominee — or even a potential nominee — can turn searingly personal. Most major news organizations have policies against “outing” gays or reporting on the sex lives of public officials unless they are related to their public duties.

A White House spokesman, Ben LaBolt, said he complained to CBS because the column “made false charges.” Domenech later added an update to the post: “I have to correct my text here to say that Kagan is apparently still closeted — odd, because her female partner is rather well known in Harvard circles.”

CBS executives at first defended the column, noting that it appeared in an opinion section that contains contributions from blogs and publications on the left and right.

Dan Farber, editor in chief of CBSNews.com, said that Domenech’s column “just got through our filters” and that if his staff had seen “a controversial statement like that, we’d want to get more evidence of its accuracy” before publishing it. “But once it is out there,” Farber said, “the better approach is just to address it head-on rather than trying to sweep it under the rug.”

He changed his mind about yanking the column after receiving an e-mail from Domenech, which the blogger also sent to The Washington Post. Farber said in a statement that “after looking at the facts we determined that it was nothing but pure and irresponsible speculation on the blogger’s part.”

So, it’s under the rug!  No one can see it.  Unless they have the Internets, in which case they can see it at Domenech’s own site, New Ledger.

And even Domenech eventually apologized.

I offer my sincere apologies to Ms. Kagan if she is offended at all by my repetition of a Harvard rumor in a speculative blog post. But if I were her, I’d feel pretty good about the fact that the White House specifically responded to this — it seems like a clue as to who the pick will be, doesn’t it?

He is somewhat baffled by the whole thing, since his position is that “when the first openly gay nominee is advanced, it will be a true statement about how far we’ve come as a society.” Anyway, Domenech took to the pixels of HuffPo to explain the whole kerfuffle.

It’s an odd thing to get attacked by the White House for a blog post, and odder still when the attack is for something mentioned in passing, and intended to highlight a political positive about a potential Supreme Court nominee.

My recent blog post at The New Ledger, crossposted at CBS News, mentioned that I thought the appointment of Elena Kagan, along with potential nominees Pam Karlan and Kathleen Sullivan, would mark the first instance of an openly gay nominee to the Supreme Court. I included it as a political positive, describing it as a “Plus” that “would please much of Obama’s base.” The issue is already out there: Karlan and Sullivan are both openly gay, and one need not look too far for arguments being made on left-wing blogs that it would be an affirmative good to appoint a lesbian.

As Sam Stein writes: “The White House reacted strongly to the assertion, relaying that Kagan is, in fact, straight. It was the first public pushback by the administration in defense of any potential Supreme Court nominee.”

I erroneously believed that Ms. Kagan was openly gay not because of, as Stein describes it, a “whisper campaign” on the part of conservatives, but because it had been mentioned casually on multiple occasions by friends and colleagues — including students at Harvard, Hill staffers, and in the sphere of legal academia — who know Kagan personally. And as the reaction from Julian Sanchez and Matt Yglesias shows, I was not alone in that apparently inaccurate belief.

The links go to Twitter comments surprised that Kagan wasn’t “out,” since they’d just assumed it was common knowledge. Which, apparently, it was.

Omri Ceren traces the sources of the  “vicious right-wing ‘whisper campaign.'”

Now I realize that I was the gullible victim of a right-wing “whisper campaign,” launched in its latest incarnation by wingnuts who infiltrated gay advocacy site Queerty and tricked lefty Robert Iafolla into passing on the scurrilous rumors.

Both links predate Domenech’s post.  And Queerty describes Kagan as “the lesbian former Harvard Law dean” but notes “As we understand it, Kagan is out, but has not commented on her sexuality for reporters. But most notable about Kagan is not her sexuality, but her status: While all the Supreme Court’s sitting justices have been judges, Kagan has never held a bench seat.”

Ceren comments:

Did the WH not get the memo that Kagan’s not only a lesbian, but that she’s not really concerned about who knows it? Two days ago it would have been totally unremarkable if she walked out of a Georgetown or Cambridge restaurant holding her girlfriend’s hand. Now it would be a national event.

Because the Obama administration decided to make Kagan’s sexual orientation a capital-t Thing, she’s now in a position where either it looks like she’s hiding her homosexuality to advance her judicial career or – if she acknowledges she’s a lesbian – it looks like she’s being chased out of the closet. This isn’t as openly insulting as when the White House blasted concerned gay activists for being part of an Internet left fringe. But in a way it’s even more denigrating.

“Don’t worry Elena. This administration will mobilize all of our considerable resources to defend you from these venomous smears.”

“Umm…”

It’s all truly bizarre.   We’re at the most gay-friendly time in American history and have, arguably, the most liberal administration ever on social issues.  And yet they’re treating casual mention of Kagan’s sexuality as a smear orchestrated by the Right?

Yes, of course, appointing a lesbian to the Supreme Court would trigger a political fight.  We’re much more tolerant of these things than we were ten or twenty years ago, but it’s still a controversial subject.   But the reaction makes no sense whatsoever.

Further, CBS should be ashamed.  What sort of journalistic ethics have they displayed here?  First, they republish a four-day-old column and don’t bother fact-checking?    Then, in response to pressure from the White House — at which point any journalist worth his salt would dig in, citing the sanctity of freedom of the press — they again don’t bother fact-checking but, instead, meekly pull the piece within hours?  Seriously?

Elena Kagan Nomination Posts:

FILED UNDER: Gender Issues, Law and the Courts, Media, US Politics, , , , , , , , , , , , , , , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Gotta love the “whisper campaign” thing. Absolutely no proof, but, hey, why not blame the Right? This is the best they have?

    Besides, it seems that the majority of people who have a problem with her possibly being a lesbian are……liberals!

  2. MarkedMan says:

    The White House mishandled this, even if Kargan is not gay. But James, you are not naive. Of course such a revelation on a supreme court nominee would generate a huge outcry. It was only a half decade ago that Karl Rove was scheming to get anti-gay legislation on the ballots around the country to generate votes and dollars from the homophobic rump of the Republican party. It worked then and it will work now.

  3. Ole_Sarge says:

    This is why she should NOT be a Supreme Court Justice: From the Washington Post Front page,

    “Four months after becoming dean of Harvard Law School, Elena Kagan sent an e-mail to students and faculty lamenting that military recruiters had arrived on campus, once again, in violation of the school’s anti-discrimination policy. But under government rules, she wrote, the entire university would jeopardize its federal aid unless the law school helped the recruiters, despite the armed forces’ ban on openly gay members.”

    “This action causes me deep distress,” Kagan wrote that morning in October 2003. “I abhor the military’s discriminatory recruitment policy.” It is, she said, “a profound wrong — a moral injustice of the first order.”

    Even the consideration of a nomination is a slap in the face of all who wear or ever wore a military uniform.

    I don’t care about whom she cohabits with, or does what with behind closed doors.

  4. Franklin says:

    I’m just curious about the title of the post … how is it not a ‘rumor’ (especially since it is apparently false)?

    By the way, the Atlantic basically predicted this blow-up several days before it happened:

    http://www.theatlantic.com/politics/archive/2010/04/sexual-politics-and-the-supreme-court/38802/

    In a nutshell, both sides will try to use this for political gain (surprise surprise).

    As for Ole_Sarge’s comment, um, defending the rights of everybody is good justice. Period.

  5. James Joyner says:

    I’m just curious about the title of the post … how is it not a ‘rumor’ (especially since it is apparently false)?

    People don’t assume Kagan is a lesbian because she looks like one but because she’s frequently seen about town with a woman with whom she acts as if she’s in a romantic relationship.

  6. Herb says:

    I’m not gay, but my Mom is. And it’s never as simple as being out or in the closet.

    Many gay people (most?) are out to certain people (family and friends) and in the closet to certain other people (professional associates, the public at large). Now while straight people might find this overly complicated and somewhat hypocritical, we’ve never had to suffer the consequences of anti-gay prejudice.

    Speaking only for my Mom, her sexual orientation has cost her several church memberships, and when I was younger, custody of her kids. We may live in a world that’s more gay-friendly than it’s ever been….

    But it’s still not very gay-friendly.

  7. Tim says:

    This may be the only post on this site where I might agree with the author, so I do.

  8. Eric Florack says:

    It’s all truly bizarre. We’re at the most gay-friendly time in American history and have, arguable, the most liberal administration ever on social issues. And yet they’re treating casual mention of Kagan’s sexuality as a smear orchestrated by the Right?

    And here, clearly, you’ve begun to become an enemy of the left… because you’re starting to understand the code. The defense, here, is all the more bizarre, because these people are deadly serious in their bizarre defense.

    Meantime, color me approximately as surprised as the day that they forced Ricky Martin out of the closet.

  9. Stan says:

    I have no idea what Eric Florack is saying. Can anybody explain?

  10. anjin-san says:

    People don’t assume Kagan is a lesbian because she looks like on

    She looks like a lesbian? What does a lesbian look like?

  11. anjin-san says:

    Meantime, color me approximately as surprised as the day that they forced Ricky Martin out of the closet.

    A team of FEMA and Acorn storm troopers led by Luca Brasi told Martin that either his signature or his brains would go on the written confession that his is gay. Obama personally ordered the mission.

  12. Eric Florack says:

    We may live in a world that’s more gay-friendly than it’s ever been….

    But it’s still not very gay-friendly.

    Funny… I don’t remember all this angst when Mark Foley was the topic. Or, Eric Massa. If we take the lack of concern over ‘gay rights’ in those instances (Along with the apparent indifference to party affiliation) and toss them up against the cases where the left went into mega angst over ‘gay rights’, the pattern emerges that the only time it’s of real concern is when the person being discussed actually supports the left’s agenda. Such as in Massa’s case, Obamacare.

  13. Eric Florack says:

    I have no idea what Eric Florack is saying.

    Think John Cleese being deadly serious.

  14. anjin-san says:

    Think John Cleese being deadly serious.

    Hmmm. Let’s see what Mr. Cleese thinks of Bit’s personal god, Sarah Palin.

    (Spoiler alert, Cleese thinks Palin is a “good looking parrot”)

    http://www.youtube.com/watch?v=jMyNk8J1c8g

  15. anjin-san says:

    Funny… I don’t remember all this angst when Mark Foley was the topic

    Memo to bitsy. Gay rights does NOT include the right of conservative congressmen to sexually harass underage congressional pages.

  16. An Interested Party says:

    How, exactly, did “the left” (I assume that is who “they” refers to) “force” Ricky Martin out of the closet? Oh, and unless Elena Kagan has ever harassed underage females and/or was inappropriately physical towards female staffers, comparisons to how her personal life is being talked about as opposed to those of Mark Foley or Eric Massa is a very poor comparison…

  17. An Interested Party says:

    Rather, very poor comparisons…

  18. Herb says:

    I don’t remember all this angst when Mark Foley was the topic.

    Careful where you’re stepping, Florack. We know you’re denser than a bag of hammers, but try not to make it so obvious.

    I mentioned my mother and her real world experiences with institutionalized anti-gay discrimination in both church and state…and you bring up Mark Foley and make some weird contortions about liberal angst?

    If we were on the schoolyard, you’d be picking broken teeth out of your busted lip.

    But since we’re in the comments section of a blog, I’ll give you the chance to acknowledge that gay people still face discrimination in courtrooms, in churches, and employment, especially in public office. You can do that, right? I mean, isn’t that the way you want it?

  19. Eric Florack says:

    Memo to bitsy. Gay rights does NOT include the right of conservative congressmen to sexually harass underage congressional pages.

    Or, staffers. But notice when that situation changed in Massa’s case, shall we? The overt concern for his privacy extended only as far as his support for the leftist mantra.

    How, exactly, did “the left” (I assume that is who “they” refers to) “force” Ricky Martin out of the closet?

    I suppose ‘they’ was never specified, so I suppose I can overlook your reading a little too much into that line.

    If we were on the schoolyard, you’d be picking broken teeth out of your busted lip.

    Turn off the machismo BS for just a moment and you’ll notice that the reference was not a comparison to your mother’s actions to anybody else’s. the point being made was with regards to people’s reactions. In this case, overtly political reactions. If you don’t understand the difference, perhaps I can use smaller words to explain it to you?

  20. anjin-san says:

    Or, staffers. But notice when that situation changed in Massa’s case, shall we? The overt concern for his privacy extended only as far as his support for the leftist mantra.

    So you are saying that only half of your earlier comment was idiotic blather?

    Interesting that you would reference Cleese earlier, you must know the degree of contempt he has politics of the sort you expose. Did you watch the video I linked to?

  21. Eric Florack says:

    Hmmm. Let’s see what Mr. Cleese thinks of Bit’s personal god, Sarah Palin.

    You still over-estimate my perception of Palin. You clearly haven’t been reading my comments on her. I’ve blasted her on occasion, and praised her when she was right. Hardly a god status. No matter for that, because it has nothing to do with the topic at hand. HAve you any relevancy to add, Anjin?

  22. An Interested Party says:

    I suppose ‘they’ was never specified, so I suppose I can overlook your reading a little too much into that line.

    You overlooked the question asked as well…so, how, exactly, was Ricky Martin “forced” out of the closet?

    the point being made was with regards to people’s reactions.

    A pitiful point, as Kagan’s sexuality is a very different thing than the actions of Foley and Massa…

  23. Raoul says:

    If she isn’t gay then a lot of people are disserving her-and heads should roll. And going out with a lady friend is now gay- JJ have you ever travelled with male buddies? And you are not gay?

  24. anjin-san says:

    You clearly haven’t been reading my comments on her. I’ve blasted her on occasion, and praised her when she was right.

    Well, I must admit that, thankfully, I have missed much of the volume of your total writing output. But I clearly recall how you gushed over Palin during the ’08 campaign, and I cannot recall you ever saying something negative about her.

    Have I anything relevant to add? Sure. We are still waiting for your explanation of how a perverted abuser of children like Foley has ANYTHING to do with Elena Kagan or supporters of gay rights. I note that none of us are holding our breath.

  25. Peter says:

    I’m simply bemused by the thought of CBS as a tool of the right wing.

    As to Ms Kagan’s sexuality, she isn’t practicing it with me or mine, therefor it’s none of my business. Her politics and judicial philosophy are my business, if she is aiming for a court spot, any court spot.

    Her alleged comment about military recruiters bothers me. If true it means that she wants the Armed Services to violate the laws enacted by Congress and signed by a President. Does Ms. Kagan not believe in civilian control of the military? If she is mad, she should be mad at Congress. They passed the law. If she actually said that she clearly isn’t smart enough to sit on the Bench. Obviously, though, smart enough for Harvard. Sigh.

  26. anjin-san says:

    We’re at the most gay-friendly time in American history

    This is an interesting turn of phrase. I am not sure that the fact that gays are less oppressed then they were in the past equates to “gay friendly”. Ask a gay person who can’t get married or has been kicked out of the military how friendly they think things are.

  27. Herb says:

    In this case, overtly political reactions.

    Like yours?

    I mean, is that why you used this opportunity to mewl about how lefties only care about your privacy as long as you’re towing the lefty line? That is your point, right? I’m not unfairly mischaracterizing it or putting words in your mouth, right?

    And then you have the stones to cry about overtly political reactions?

  28. Californio says:

    Isn’t Kagan the one who was given a standing ovation when speaking to the Federalist Society? Perhaps those seeking to torpedo her chances are the polar opposite of the “vast right wing conspiracy….”

  29. we need smaller government says:

    Harriet was given the same treatment by the leftists.

  30. careful-eyed reader says:

    “Poof! 404!”
    Such low-blow slurs against gay Americans are not acceptable, even in double-entendre blog humor.

  31. susan says:

    Oh brother can you spare me some whine?

    Gay got it easy compared to straights.

    If Kagan were a straight female married to a loyal, loving straight husband who together are raising five children; is a Bible-based Christian; experienced in hunting and fishing yet knows how to wear a pair of stilettos; and holds a deeply appreciated love for both America and her founding fathers then the Democrats-Highly Inbred Educated Whites would send their Party of Lawyers along with Catholic Andrew Sullivan to Kagan’s house to investigate what is up inside her uterus, as well as, her private correspondence her finances.

    Darlings, here’s your hopey-changey….Gay is so yesterday

  32. An Interested Party says:

    Awwwww…the poor, downtrodden, white Christian masses…how horribly they are treated! Where is the NAAWP…

  33. Paul A'Barge says:

    Ask a gay person who can’t get married or has been kicked out of the military how friendly they think things are.

    All gay people can get married. They simply have to marry a person of the opposite gender.

    And gay people don’t have to get kicked out of the military. They simply have to keep the news about their gayness to themselves while they’re in the military. As in “don’t tell your co-workers”.

    Of course these are the two *big* lies that gay people like to tell. Which is why many of us don’t trust gay activists with our society’s definition of marriage or with activities that require “duty, honor and country”.

  34. Franklin says:

    Of course these are the two *big* lies that gay people like to tell.

    Neither of them are lies. The only way to take the first one as a lie is to intentionally misunderstand it.

    As for the second one, being “caught” at a bar and outed by someone who doesn’t like you still can get you discharged.

    So it appears that *you* are the liar, so I can’t possibly trust you to define marriage or be a part of the military. Sorry.

  35. Hangtown Bob says:

    “This administration will mobilize all of our considerable resources to defend you from these venomous smears.”

    Ya know…… If someone accused me of being a heterosexual, I would not consider it to be a “venomous smear”!

    Is there something WRONG about being a lesbian?

  36. An Interested Party says:

    And gay people don’t have to get kicked out of the military. They simply have to keep the news about their gayness to themselves while they’re in the military. As in “don’t tell your co-workers”.

    Umm, no, that alone doesn’t keep them from being kicked out of the military…meanwhile, the real *big* lies are that gay marriage is somehow a threat to heterosexual marriage and that openly gay people can’t perform activities that require “duty, honor and country”…

  37. anjin-san says:

    Here is a story about life in “gay friendly” America that deserves our attention:

    Suit Charges Elderly Gay Couple Was Forced Apart
    By GERRY SHIH
    Clay M. Greene’s story, as recounted in his recent lawsuit against Sonoma County, is a tale of loss, doubled and redoubled. For the gay men and lesbians, the series of events outlined in the complaint hits very close to home.

    Mr. Greene, a 78-year old gay man from Sebastopol, has filed a lawsuit against Sonoma County after claiming a spate of indignities he suffered at the hands of officials during a bizarre estate battle that took place when his partner, who was 88, fell and became hospitalized in 2008.

    http://bayarea.blogs.nytimes.com/2010/04/20/suit-charges-elderly-gay-couple-was-forced-apart/

    And this was in the Bay Area. A fracking disgrace.

  38. Anderson says:

    What does a lesbian look like?

    The internet has made this question easier to answer than ever before. Don’t try it at work, however.