When rumour replaces news

Doubt surrounds US Supreme Court nominee Elena Kagan — not about her suitability, but about her sexuality


Every American political leader strives to earn a place in history which stretches beyond their own term in office. One of the most effective ways of doing this is to nominate like-minded people to the Supreme Court where there are no term limits and justices serve well into their dotage.

As a result, the proposed justices come under extraordinary scrutiny in Congress, in the media and these days in the blogosphere. The choice by Barack Obama of 50-year-old Solicitor-General Elena Kagan as the replacement for nonagenarian John Paul Stevens is no exception.

Initially, much of the media focused on the fact that Kagan is a practising Jew. Her presence on the Supreme Court would mean that in a profoundly Protestant country there would be three Jewish justices among the nine members of the court.

In a dispatch from Washington, the Daily Telegraph, quoting religious scholar Diana Butler Bass, noted: "There will be no one with Protestant sensibilities on the court, no one who understands the nuances of one of America's oldest and traditional religions and the religion that deeply shaped American culture and law."

Initially, the media focused on the fact that Kagan is a practising Jew

It turns out that the other six justices are all Roman Catholics. Not all observers have been so harsh about the potential Catholic-Jewish domination. Frances Kissing of the University of Pennsylvania remarked that a court with six Catholics and three Jews "was marvellous" and reflected the fact that America is no longer "wheatfields and farmers of European Protestant stock".

If it was Kagan's Jewishness which first caught the imagination, it is now her baseball prowess which is attracting the headlines. Last week's Sunday Times carried a picture of her swinging a baseball bat under the headline: "The rumour that will not be batted away". The paper noted that Obama's choice has caused an "exceptional rumpus" because such images of stout, short-haired woman in the US are generally thought to indicate gay leanings. Oddly enough, it was the normally staid Wall Street Journal which set the hare running by first printing the picture, provoking speculation across the media.

"Is Kagan gay?" asked the Daily Politics website. "Why do people think Elena Kagan is gay?" wondered the Mother Jones site.

The WSJ denied any intention to cause mischief for Kagan, a distinguished jurist who is former dean of Harvard Law School. But it has been widely noted that woman's baseball has long been associated with lesbianism. On the Guardian Comment is Free website Dan Kennedy came rushing to the nominee's defence noting that the political right's attacks had been so vicious that his instinct is to "defend the poor woman".

Kagan has received a much better treatment in the Jewish media. A long profile in the Forward traced her rise from a two-bedroom apartment on the Upper West Side of Manhattan to the nation's Supreme Court.

Her early background, it argued, was in the left-wing politics symbolised by Bella Abzug, the feminist and renowned opponent of the Vietnam War who later represented the neighbourhood in Congress. According to the Forward, when Kagan was growing up her family were members of B'nai Jeshurun, a Conservative synagogue. She later became a regular Shabbat attender at the more radical Reconstructionist West End Synagogue.

The New York Times had more high-minded concerns about Kagan's success down the years in hiding "her thoughts and shielding her philosophy". It wanted to know where she had been on issues such as executive power, same-sex marriage and the application of the death penalty. The lack of information made it hard to decide whether she would genuinely oppose the court's aggressive right-wingers.

The NYT was less concerned about her ethnic and sexual than the power she would wield if she is confirmed. Thank goodness for some sanity.

Alex Brummer is City Editor of the Daily Mail

    Last updated: 4:51pm, May 21 2010

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