It has been clear since Elena Kagan was nominated to the U.S. Supreme Court that her confirmation hearing would be unusually focused on things gay.
First, there were the complaints that she barred military recruiters from Harvard Law School while she was dean. Then, came rumors that she herself is gay. And finally, there has been a generalized fear expressed by right-wing groups that she's liberal enough to reverse the Defense of Marriage Act.
But there's surprisingly little support for any of these assumptions in the thousands of e-mails, memoranda and other documents submitted to the Senate Judiciary Committee from the archives of the Clinton White House. Kagan, who served as associate White House counsel from 1995-96 and as an official with the Domestic Policy Council from 1997-99, showed little stomach for tackling gay-related issues.
Strangely, there are no e-mails or documents addressing the Defense of Marriage Act ( DOMA ) , though the legislation was introduced, passed, and signed by President Bill Clinton in 1996. That was the year Kagan was Associate Counsel and, thus, the point person to advise the president on the constitutionality of bills coming to his desk.
In response to questions during her confirmation hearing to become solicitor general, Kagan said she "never studied" the Massachusetts Supreme Judicial Court's 2003 ruling that said gay couples have a state constitutional right to obtain marriage licenses the same as straight couples. The lack of interest seems particularly odd given that she was dean of Boston-based Harvard Law School at the time the decision became globally publicized and discussed—triggering attention from presidential candidates to Congress to the mayor of San Francisco. She told the Senate Judiciary Committee she couldn't remember making any remarks about the law even though she moderated a panel on the landmark Goodridge decision at Harvard Law School three months after it was issued and during the throes of conflict in the Massachusetts legislature considering ways to undo it.
"I suspect I participated in informal conversation about the decision when it came out," said Kagan, "but I cannot remember anything I said."
At least two people close to her support that claim.
Asked in a recent telephone press conference whether Kagan advised Clinton on the constitutionality of DOMA, her then-colleague Michael Waldman said, "I don't know if she offered her view" on DOMA. Asked whether she would have prepared a memo to the president concerning the bill's constitutionality, he said "possibly." This reporter has found none thus far.
And Lauren Lucas, who graduated from Harvard Law in 2005 and participated in a White House teleconference with reporters about Kagan, recalled that there was "a lot of student discussion" about the Goodridge decision but Lucas "heard no comment from Kagan."
In fact, e-mails from Kagan generally managed to make no comment about gay issues—not even whether she would attend a White House meeting to discuss a gay issue. In response to a Feb. 21, 1997, e-mail she received asking that she attend a "Gays Issues" meeting that afternoon, Kagan's response complains that she's gotten notice of the meeting only that day; nothing about whether she would attend.
Two months later, openly gay White House staffer Richard Socarides gave her two days' notice and asked her to attend a meeting to discuss hate crimes with a group of "gay and lesbian anti-violence ( hate crimes ) advocates from around the country." His e-mail tells her the meeting is at the request of the advocates who wish "to discuss the recent rise in hate crimes directed at gay and lesbian Americans." Her response is curt and non-committal: "if I can."
In August of that year, Socarides e-mailed Kagan asking her "Where are we?" on the "sexual orientation non-discrimination executive order." Kagan forwarded his e-mail to another policy official to ask, "did bruce really say for maria to do this? Why?"
Bruce Reed was Kagan's boss, director of the White House Domestic Policy Council. Maria Echaveste was deputy chief of staff. Another e-mail six months later showed the Council was still talking about it.
These are not the machinations of a stealth gay activist. The e-mails, documents, and testimony at her confirmation hearing for Solicitor General paint a picture of an official who is aware of gays as a constituency but not as a priority.
On "Don't Ask, Don't Tell," her position seemed crafted to walk the most narrow of middle lines. Speaking to a group of senior cadets at West Point in 2007, Kagan said she was "grieved" that the military and law schools were in court, facing off over the policy to exclude gays.
"Law schools, including mine, believe that employment opportunities should extend to all their students, regardless of their race or sex or sexual orientation," said Kagan. "And I personally believe that the exclusion of gays and lesbians from the military is both unjust and unwise. I wish devoutly that these Americans too could join this noblest of all professions and serve their country in this most important of all ways."
Shortly after Kagan became dean of Harvard Law, in 2003, an Air Force Chief of Recruiting sent an e-mail to superiors indicating that Harvard "folded and conformed to our interpretation" of the Solomon Amendment, "but did so WITH much grumbling."
While "Don't Ask, Don't Tell" preceded Kagan's time as White House counsel, the Solomon Amendment was passed in 1996, when she was associate councils. The amendment was passed in response to law schools uniting behind a policy of requiring employers who wanted to recruit among their students to abide by a policy of non-discrimination, including no discrimination based on sexual orientation.
Kagan inherited the policy as dean at Harvard Law when she took the helm in 2003. That October, an Air Force recruiting chief e-mailed superiors that "Harvard complied [ with the amendment ] and treated the [ Air Force ] the same as other employers."
Richard Socarides, who was White House liaison to the gay community during the Clinton years, suggests that the portrait painted by this latter memo is a more accurate one than are the various e-mails.
"I worked with her and got to know her quite well during that period of 1996 to 99," said Socarides. "She was very supportive of what the president was trying to do around creating greater equality for gays and lesbians. She was very supportive of the mission that he had given me—to make sure, to the extent possible, that gays were included and a part of every relevant policy discussion that took place."
Socarides said he does not remember Kagan being at any of the White House meetings on DOMA, but that he did talk to her "early on" about his proposal to have the president issue an executive order on sexual orientation discrimination in the federal workplace.
"She was on board from the start," said Socarides.
Socarides said he simply couldn't explain why Kagan's e-mail concerning the proposed executive order appears to question why the administration should issue it. The order, issued in May 1998, declared that a Civil Service law requirement that a federal employee's "conduct not related to job performance" ( such as the employee's sexual orientation ) could not be a basis for discrimination.
"Her reaction was like, 'Sounds right to me, let's do it,'" said Socarides. "She was never dragging her feet on this or any gay stuff."
©2010 Keen News Service
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