This had to be one of the screwiest news items I’ve read in a very long time.  There’s a lot about this story I don’t get.

Elena Kagan, Solicitor General and former Dean of Harvard Law School, has been nominated by President Obama to fill the seat on the U.S. Supreme Court previously occupied by Justice John Paul Stevens, who announced his retirement at the end of the current term.

Even though Ms. Kagan has never sat on the bench and, we, therefore, have no judicial decisions on which to gauge how she will rule on any given case, there’s no doubt in my mind that she’ll be a far more liberal Justice than I would have selected – just look who’s nominated her.

While anyone can speculate how Ms. Kagan will rule from the bench, what I don’t get is the Wall Street Journal’s May 11th edition’s front page photograph of her from 1993 playing softball under the caption, “Court Nominee Comes to the Plate.”  There wasn’t even a front page story about Ms. Kagan!

I saw the picture after the hoopla began in the media.  Apparently, Cathy Renna, a former spokesperson for the Gay and Lesbian Alliance Against Defamation (“GLAAD”) said “It clearly is an allusion to her being gay.  It’s just too easy a punch line.”  How does one jump to the conclusion that a woman who plays softball is gay?  The first thing I thought of when I saw the picture was, “Hmm, looks like she’s gained a few pounds.”  Haven’t we all?

Never one to just leave something alone figuring that the people at GLAAD – even a former spokesperson – are so thin-skinned that everything, no matter how innocuous, has to somehow be derogatory, I searched around some more and found a segment on America Live with Megyn Kelly where the photo was discussed.  One of Megyn’s guests was Ellen Ratner, White House Correspondent and Bureau Chief for the Talk Radio News Service, who said that baby boomers, like herself, grew up with the stereotype image of the gym teacher and women who played softball and that the image was, indeed, a subliminal suggestion that Ms. Kagan is gay.

I’m a baby boomer and I can tell you that it never occurred to me in high school (‘64-‘68) that my gym teacher was gay nor had I ever heard anyone discuss the subject.  I just don’t get where Ms. Ratner is coming from on this one.

So what other conclusions are we to jump to?  Because 50-year old Ms. Kagan and my 80-year old aunt were never married and never had children, are we also to assume they’re both lesbians?  That’s pretty ridiculous.

I heard one commentator say that, because gay marriage will no doubt end up before the Supreme Court, we are entitled to know if Ms. Kagan is a lesbian.  Well, are we to presume that if Ms. Kagan is a homosexual, she will be in favor of gay marriage?  If that’s true, then are we to presume that any heterosexual on the bench will vote against gay marriage?  I would hope that any Justice would strictly construe the Constitution and not rule on a case based upon their personal biases and feelings of how things should be.

Regarding abortion, as an aide to former President Bill Clinton, Ms. Kagen helped defend his veto of a measure that would have banned late-term abortions with few exceptions, according to files handed over to Congress recently.  Furthermore, “[she] has no judicial record from which to determine her position on Roe v. Wade, but she has publicly criticized the 1991 Supreme Court ruling to allow the Department of Health and Human Services to restrict funding from groups that performed or promoted abortion, and has also criticized crisis pregnancy centers,” said Marjorie Dannenfelser, president of pro-life political action group Susan B. Anthony List.

Dr. Charmaine Yoest, president of Americans United for Life similarly criticized the nomination and said that “Elena Kagan has strong ties to abortion-advocacy organizations and expressed admiration for activist judges who have worked to advance social policy rather than to impartially interpret the law.”

On assisted suicide, she wrote in 1998 that encouraging a new federal law banning assisted suicide would be “a fairly terrible idea.”  She expressed the opinion in a handwritten note during an internal administration debate over whether doctors in Oregon should be allowed to prescribe fatal drugs to help terminally ill patients commit suicide.

Most disturbing is her rationale in not requiring law students at Harvard to study Constitutional law.  As a lawyer myself, I can’t imagine how our own Constitution is not required.  But in a 2006 Harvard news release explaining the changes, Ms. Kagan explained the move away from constitutional law was deliberate: “From the beginning of law school, students should learn to locate what they are learning about public and private law in the United States within the context of a larger universe — global networks of economic regulation and private ordering, public systems created through multilateral relations among states, and different and widely varying legal cultures and systems.”  “Accordingly, the Law School will develop three foundation courses, each of which represents a door into the global sphere that students will use as context for U.S. law,” the guide said.

As you can see, I’m more interested in Ms. Kagan’s constitutional orientation than in her sexual orientation.  The decision regarding the constitutionality of gay marriage is of concern to me as are numerous other important issues facing our society today and which the Supreme Court will have to address.  I want to see an analysis of those issued based on sound reasoning and constitutional interpretation and not judicial activism.

We’ll just have to wait for her confirmation hearings.  In the meantime, a 17-year old photo of a woman playing softball doesn’t invoke in me any subliminal suggestion that Ms. Kagan is gay.  To suggest otherwise seems goofy and totally absurd.  I don’t get the hoopla surrounding the photo and if you do, God bless you.



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