Blog of the International Journal of Constitutional Law

Kagan Confirmation Controversy?

The U.S. Supreme Court confirmation process has become increasingly polarized. While the system in other countries is not free of problems, things in the U.S. reached a new low lately when several prominent news commentators essentially called on Court nominee Elena Kagan to address whether she is gay or not (Maureen Dowd in the New York Times, and Andrew Sullivan who has a popular blog). Fortunately Dahlia Lithwick of Slate responded, and pointed out that such information is largely irrelevant to the key confirmation issues, and may simply reflect the media’s desperate need to drum up something controversial. I have been struck by two ironies regarding the Dowd-Sullivan positions. First, the U.S. Supreme Court has protected gay rights under a right to privacy rationale. Yet Dowd and Sullivan do not respect Kagan’s privacy. Second, I don’t believe either Dowd or Sullivan were exactly supporters of trying to impeach Bill Clinton when revelations of his activities with Monica Lewinsky were disclosed. So that adds to the question of why this Kagan information is relevant. Hopefully, the actual Senate confirmation hearings will be more substantive, and include serious conversations about constitutionalism (and even the use of foreign law) without some of the Kabuki ritual of the Justice Sotomayor hearings.


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