How Many Diamonds Does Elena Kagan Rate?

WHY ARE WE EVEN HAVING THIS FUCKING DISCUSSION?

(Not us; U.S.)

/This question has been endorsed by JNOVJr. who doesn’t understand why this shit matters at all. I tried to explain to him why it shouldn’t, but it does, and my explanation was lacking.

@JNOV: Because the lezbo deal is all they got.

@Benedick:

Yeah. This one is gonna go quietly, I think. Just not enough of a paper trail. Plus, MODERATE AS HELL.

Which is an interesting turn of phrase, come to think of it.

@JNOV:
we have been raking this over the coals over that TL. I just said this:

personally I think the interesting part is that in spite of the persistence of it, it has really seemed to have no effect at all on the momentum of her nomination even in the most right with quarters. no one really seems to care much beyond morbid curiosity.
a good thing afaiac.

in that sense it is important IMO.

@Tommmcat Still Gets Carly Confused With Meg:

the right wingers are acting happy because they know there is nothing they can do. it is the left what has their panties in a twist.

@Benedick:
also just said this:

but I honestly dont think most of the flap was, at least originally meant as, an attack.

the guy who seems to have started it says he honestly thought she was “out” because he had heard it so much.

@Benedick: She will also be asked to prove that she is not a Mexican.

@JNOV: Bigotry is generational, alas. Takes a few decades to cull the assholes from the living.

@redmanlaw:

no really. the history is important. the guy who started it says this:

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.–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.

the thing is, no one seems to care. really.
even the right wingers are not milking it as far as I can see.
am I wrong. is anyone really USING this in any real attempt to stop the nomination?
the point being if they are not, and I dont see that they are, why should the possibility of the first gay justice NOT be a topic of conversation?

I understand everyone is not an activist and she can be out or not out gay or straight but I dont think the discussion is a bad thing.

@Capt Howdy: I’m sorry — I want to understand what you wrote, but all I can make out is AFLAC.

Here’s how it went down with Jr and me:

Me: Ugh. All of these dudes are like, “I didn’t date her, but others did.” Jesus. Why even address it?

Jr.: How do you know she’s gay?

Me: Um, well, Karlan and Sullivan were not out when I went to law school, but we pretty much knew what was up.

Jr.: But how did you know?

Me: Rumors, I guess. I didn’t know in the sense that I didn’t date either of them, so I guess I didn’t know, but it was an open secret, and later they came out.

Jr.: But you don’t know about Kagan either, then. And what does it matter anyway?

Me: It doesn’t matter, but can you imagine all the calls RW nutjobs are going to make to their senators if an openly gay person is nominated to the SCOTUS?

Jr.: ::People Are Stupid Look:: <–he's good at that.

Me: Yeah. Ugh.

So, when I write why are we even having this discussion, I'm talking about why are all these folks yapping about whom she's dated? If it's not Ashton Kutcher, I don't fucking care. Would it be great to have an openly gay person serve on the SCt? Absolutely. Is it anybody's fucking business? Absolutely not.

So, what I'm trying to say is it should be a non-issue w/r/t nomination and confirmation, but it should absolutely be a point of pride if an openly gay person is nominated and confirmed. Thing is, unless I've missed something, and I may have, she's not openly gay.

Unless she wants to discuss her sexuality, I say people need to stop trying to make her straight or gay. It’s ridiculous and unnecessary. And my “explanation” to my kid was ridiculous. The whole Sullivan and Karlan have tanked their chances at SCOTUS nominations because they came out should be ridiculous, but it’s probably true for another 15 years.

@JNOV: But don’t you think that the reason Sullivan and Karlan aren’t nominated is not because of their sexuality but because they actually have taken positions on various issues? In Karlan’s case she’s an unabashed full-throated liberal willing to advocate for unpopular causes (i.e. criminal defendants, voting rights for people of color, the ACLU, etc.), and because Sullivan has written extensively on the Constitution (in addition to the Sullivan/Gunther casebook, obvs) and took a much larger role in the challenge of the Solomon Amendment than Kagan ever did?

I don’t know if that’s a better or worse of a reason than their sexuality for not being on the short list. Equally bad, I think.

Meanwhile, speaking of judicial nominees, I read in the legal newspaper today that the Hispanic female district judge from the Land of Jamie Sommers who Barry nominated for elevation to the 9th Circuit is getting attacked by conservatives because her sister works for National Council of La Raza. It’s bad enough that apparently working for the ACLU or NAACP-LDF is now a permanent stain, but because your sister works for an advocacy group?!?! WTF!

@SanFranLefty: Oh, I totally agree that their paper trails are extensive, and in times past, that was a good thing — we knew where people stood, or we thought we knew where people stood (read: Earl Warren).

I’m not saying that Karlan and Sullivan coming out is The Thing that makes them unlikely nominees, but it probably adds to the negative column when presidents calculate how easily their nominees will be confirmed. I doubt sexual orientation will always factor as a negative, and I hope it will be seen as a positive or a null set at some point. But when we’ve got this bullshit backpedaling on DODT and the shitty DOMA memo coming from this administration, I doubt we’re going to see an openly gay nominee, paper trail or not.

@SanFranLefty: Okay, I have to share something from this article about the Arizona judge (it’s a password protected site so I can’t link directly to it). Highlighting is mine.

Before the Arizona immigration firestorm exploded, U.S. District Judge Mary Helen Murguia of Phoenix looked like a safe Obama administration choice for elevation to the 9th U.S. Circuit Court of Appeals. But now it appears that Murguia’s history with a big racial profiling lawsuit against Maricopa County Sheriff Joe Arpaio could singe her nomination.

Lawyers for the controversial lawman last year demanded and got Murguia to recuse herself from hearing the case over claims she’s too close to her twin sister Janet, the president and CEO of the National Council of La Raza, a Latino advocacy group.

Although La Raza is not involved in the suit against Arpaio, the group has severely criticized his approach to immigration issues, including his sweeps in heavily Latino neighborhoods and his workplace raids seeking those in the U.S. illegally.

Judge Murguia denied that she was biased but still granted the recusal motion, which came with a litany of inflammatory accusations that are publicly available for opponents to use in Murguia’s confirmation hearings before the U.S. Senate.

[snip]

Last summer, Murguia denied Arpaio’s motion to dismiss the case. Two weeks later Arpaio’s lawyers – Timothy James Casey and Drew Metcalf of Phoenix’s Schmitt Schneck Smyth & Herrod – filed a recusal motion accusing Murguia of siding with her sister against the sheriff and claiming she had a “natural bias” against him.

“Further, the Court and her twin sister purportedly are quite close, confide in one another on various issues, and [La Raza’s] publicly stated opposition to Defendant Sheriff Arpaio bears directly on the resolution of the material issues in this litigation,” the motion said. Casey and Metcalf did not return calls.

Their motion cited news articles describing the sisters’ relationship and quoted from readers’ comments found at the Arizona Republic’s and the Phoenix Business Journal’s websites. A few examples:

“Of course this Judge will let the lawsuit stand. Her sister is the President of La Raza. Can you say CONFLICT OF INTEREST!”

“Judge Murguia … is only making her sister’s job easier.”

“This judge should be impeached for not recusing herself. … If they ever had a shred of legitimate claim, this blows it away.”

Mary Murguia issued a 27-page order granting recusal, but she denied any existence of prejudice and took several shots at Arpaio.

Like the plaintiffs, Murguia was skeptical that Arpaio learned about her twin only after Murguia ruled against the dismissal of the case. Earlier knowledge might have made the recusal motion untimely. “Plaintiffs have accused Defendants of knowing about the Court’s sister and [La Raza] and attempting to use this information as a proverbial ace in the hole, to be pulled out and played when it made convenient trial strategy to do so,” Murguia wrote. “The Court finds that serious questions exist as to the veracity of [these] representations …” Even so, she decided, she would not dismiss the motion for untimeliness and would instead look its substance.

“The idea that a Hispanic judge should never preside over a controversial case concerning alleged acts of racial profiling purportedly committed against Hispanics is repugnant to the notion that all parties are equal before the law, regardless of race,” she wrote in answer to the sheriff’s claim that she has a “natural bias” against the defendants.

Citing trolls on the Arizona Republic‘s website in a FUCKING LEGAL BRIEF?!?!?!?
Arguing with a straight face that a Latina judge has a “natural bias” in a FUCKING LEGAL BRIEF?!?!

Those fucking attorneys for Arpaio are lucky she didn’t find them in contempt of court!
Arpaio is such a shitbag.

/Paging JamieSommers – WTF is going on there?? They are officially batshit insane in Arizona.

@SanFranLefty: That’s some crazy shit right there. Maybe she should have said, “We’re fraternal twins, not identical,” (if that’s the case), and her “natural bias” wouldn’t come into question.

/sarcasm

@JNOV: Well, you know, even if they were fraternal twins, those brown people are just so darn hard to tell apart!

/snark, obvs.

@SanFranLefty: Yes, the “natural bias” is coded in our DNA. See Justice Thomas.

@SanFranLefty: Everybody is afraid of being Borked. I’m not so sure that’s a good thing. What do you think?

TJ/ Oh, all of my professional letters of reference are in. One of them talks about how I lovingly threatened my students. I’m not sure how that’s going to go over…

@Benedick: Also: Welcome back, Tony Bliar avatar. When might we see the Posh New Poof?

@rptrcub: All I see is a doggie. :( Is it lechy Tony Blair or Crazy Eyes Tony Blair?

@JNOV: It’s crazy fucked up grin Blair.

@rptrcub: Hmmmm…he’s still a doggie to me, but SFL is Ruth Bader Ginsburg! <3

@JNOV: Finally! All the avatars are f-ed up on my computer right now – you’re the statue in the comments thread here but the Phillies logo in the top right corner. And cubbie and nojo don’t have avatars right now….

@SanFranLefty: Yeah, mine are all fackackta. Is Ruth giving us the finger? And now yours has disappeared. Fucking Gravatar. How does it work?

May I just say a word about Elena Kagan, with the understanding that I’m not a leagle and don’t know wtf I’m really talking about?

Yes, I may.

My own and, from what I understand, other leftist civil libertarians’ criticisms of the choice are primarily because there were, as we perceive, much better choices.

I don’t know Elena, and apparently even her closest friends former college acquaintances don’t know her, enough to have a good feeling about her views on a host of issues. OK, blank slate, good strategic choice on Rahm’s part.

Of the few indications uncovered so far, she has expressed an inclination toward supporting executive privilege. That troubles me.

She has also flip-flopped completely on the question of whether SCOTUS nominees should have to answer hard questions about their positions during the Senate vetting process. That troubles me, though a bit less.

I’d like to keep a very open mind, but I’ve learned not to trust the Obama administration just because it is run by Obama, whom we all agree is a Good and True Defender of Liberty (in his heart and his words, if not in deed) — not to mention he’s a sexy muthaPOTUS.

The track record on things that are truly important to me is not good. It’s excruciatingly disturbing to me to see the tribal politics that come into play whenever the OAdmin does something questionable — the whips are immediately brandished by the beltway party insiders, and it’s a good thing that the “radical” “leftist” bloggingheads go apeshit over the latest play in the onward shift of the “moderate” to the “right”.

Meanwhile, all this theory about her lesbionic superpowers or lack thereof really don’t enter into my assessment. Yes, it would be great to have a ghey on the court, out or not, but I really don’t see how it affects questions of habeus corpus, war crimes, rendition, torture, corporate citizenship, etc.

@SanFranLefty: In Karlan’s case she’s an unabashed full-throated liberal willing to advocate for unpopular causes

Exactly why she wasn’t chosen.

@JNOV: we thought we knew where people stood

That is not an option now. The people we vote for, from whatever party tribe, exist to promulgate the status quo, which is simply about shifting wealth from us to them. Is there any other viable interpretation of the facts? On the ground?

@SanFranLefty: I don’t know if that’s a better or worse of a reason

It’s a completely valid reason.

(i.e. criminal defendants, voting rights for people of color, the ACLU, etc.)

That in itself is enough to make me pine for the days when such talk was merely described as “liberal” instead of “treasonous”.

Do liberals / civil libertarians / dare I say “libtards” have no balls/ovaries left whatsoever?

@PedonatorUSA:
she is a cipher which is why she was chosen. they have been taking this nomination apart over at talkleft. they are not happy. and many lefties are equally unhappy.
and its not just the cipher part. she has some really questionable decisions behind her. the diversity in hiring thing is only a part of it.

it is the left pushing for a filibuster. not the right. the right seems quite happy.
fuck, check out Glen Reynolds

Wise Pick /Kagan a sure shot for Supremes

@SanFranLefty: They do it because it has worked in the past. Murguia ended up recusing herself from a challenge to the AZ employer sanctions law because La Raza had taken a position on it. And I think there was another instance where her twin’s activities called her judgment into question. You found it.

Arpaio’s lawyers are always slash and burn. It’s not a racist thing; it’s an asshole with no regard for the rule of law thing. He’s that way with the white GOP-dominated county board of supervisors too.