Supreme Court Battle Lines: Homosexuality, Choice And Homosexuality (Again)

If identity and ethnicity dominated the debate over Justice Sonia Sotomayor's nomination (two words: "wise Latina"), President Obama's next nominee seems primed to be attacked under some pretty familiar faultlines: abortion politics and homophobia in its various forms.

The nomination to fill Justice John Paul Stevens' seat is not moving at Internet time — by design, says Newsweek's Dan Klaidman. Even though the Obama administration had plenty of advance warning that Stevens would retire, it is intentionally waiting it out to see how its shortlist does in the media vetting:

Until you see how the public, the media (mainstream and blogosphere), the interest groups, and the Hill react, you don't know don't know how safe your nomination will be. Hence the imperative of leaking the shortlist first. There are two advantages to this time-honored ritual: (1) the possibility of reporters ferreting out hidden land mines, and (2) should you know the candidate has a vulnerability, airing it publicly over several weeks may inoculate him or her. The longer it's out there, the more likely it will be discounted by the market.

That's why Klaidman's administration sources say the announcement will come in the first two weeks of May — after the first-round media storm, before the Senate's August recess. And it's also why the current chatter about potential picks, the majority of whom are female jurists, matters.

The most recent crop of these stories still bear an obligatorily cautious air, at least in traditional non-partisan media (example: the headline of this Washington Post piece on Judge Diane Wood: "Abortion Rulings Could Bring Scrutiny To Possible Nominee Wood," emphasis added). But the narrative of possible nominees' weakness is already starting to gel.

For Wood, it's rulings she made on abortion politics, according to that same Washington Post story:

"That's her Achilles' heel," said Curt Levey, executive director of the Committee for Justice, which opposes Wood's rulings on abortion. "It tells you that she's probably not going to be selected, because Obama doesn't have the stomach for this to be about an abortion debate."

What are the rulings that would draw anti-choice ire? The University of Chicago law professor (who, as a University of Texas graduate, would be the only Justice without an Ivy League degree) has ruled against bans on late term abortions and against abortion waiting periods in Indiana. NOW v. Scheidler, a twenty-year battle, pitted concerns over preventing violence in and around abortion clinics against free speech. (Examples: "In Washington, protesters rushed the doors of a clinic, pinning workers and volunteers against the building. In California, a woman seeking postoperative care after ovarian surgery lost consciousness after being grabbed by protesters.") Amid a circuitous attempt to try the protesters under RICO laws, Wood wrote, "The First Amendment does not protect violent conduct."

How much ground on the abortion debate is the Obama administration willing to cede from the outset? We shall see. In the meantime, liberal advocates have to point out the obvious:

Critics "are misconstruing some carefully reasoned opinions for their own political ends," said Nan Aron, head of the liberal Alliance for Justice, who noted that Wood's support for abortion rights is not unusual. "No one expects a Democratic president to appoint a justice or a judge who is anti-choice."

For Kagan, the Achilles heel is gays in the military — specifically, as dean of Harvard Law School, upholding the ban of military recruiters until Don't Ask, Don't Tell is repealed — and her own rumored sexuality, which put the administration in the odd position of both feverishly denying that Kagan is gay and denying that it mattered.

In The Daily Beast, Linda Hirshman points out how schizophrenic this is:

Being gay is not automatically a disqualification for office anymore. Indeed, many places have laws prohibiting discrimination based on sexual orientation, and there are an increasing number of gay and lesbian officeholders at all levels of elected government. So why do we still think it's bad to call someone a lesbian?... For the record, I don't know anything about Elena Kagan's sexual orientation, and I don't care. What hurts is the assumption that it hurts.

...When the Kagan rumors started, pretty much everyone in the mainstream media agreed smugly that they shouldn't be outing anyone. The only explanation for the hands-off policy is that the media paladins think there's something more disgraceful about being gay than cheating on your wife with a prostitute. It's not protective, it's the soft bigotry of low prurient expectations: The media treat same-sex orientation as so awful you cannot reveal it. Treat same-sex orientation as a liability, and, guess what, it becomes a liability.

Meanwhile, in the same space, Peter Beinart says Kagan's refusing to let military recruiters at Harvard Law School (a stance widely shared at the university) plays into conservatives' hands by making liberals seem unpatriotic. The best way to fight policies like Don't Ask, Don't Tell, says Beinart, is by encouraging people educated at elite institutions to join the military.

Fair enough, although it's hard to follow him this far:

Were Kagan to be passed over for the Supreme Court because of her views on military recruitment, many liberals would likely consider it unfair. But it would make ambitious Ivy League administrators think twice because succumbing to the left-wing mindlessness that sometimes prevails on campus

Because nothing's more important to the future of this country than battling the attitudes on a handful of campuses.

One of the few men on the shortlist, Judge Merrick Garland, is already turning into "the one that conservatives hate less." Per The National Review:

Another intellectually stellar, more moderate Democrat with no apparent land mines in his paper trail and the respect of Republican colleagues and senators alike, the 57-year-old Garland would be the easiest of the four to confirm by far...This year, the political pressure to pick another woman or a person of color is not as great. But would Obama choose a white male nominee who seems clearly less liberal than Stevens?

Curse the Obama administration and its obvious bias against regular old white guys. One of whom, by the way, said Sunday that both he and his wife weren't good contenders for the spot, both because they're too old and because they're doers. Said Bill Clinton on This Week of whether he and Hillary Clinton would make good picks:

"She would be good at it, but – and I think it's one point in her life she might been interested in it. But she's like me, you know, we're kind of doers. We like being out there and doing things...I think if she were asked, she would advise the president to appoint some 10, 15 years younger."

Onward to the battlefield.

Expect Supreme Court Nominee To Be Announced Between May 1 And 15 [Newsweek]
Merrick Garland [National Review]
Elena Kagan's Achilles Heel [The Daily Beast]
Sexual Orientation And The Supremes [The Daily Beast]
Abortion Rulings Could Bring Scrutiny To Possible Nominee Wood [WaPo]
Bill Clinton: Hillary And Me Too Old For Scotus [Politico]