Photographers doused Supreme Court nominee Elena Kagan in a flood of camera flashes this week, shedding light on a woman previously enshrouded in anonymity. Commentary centered on the woman’s physical semblance and personal habits, including her height (5’3″), sexuality (debatable) and whether she drinks (yes) or smokes (yes). While Kagan was making her way around the Hill to ensure support during a forthcoming confirmation process, teams of fresh-faced anchors ejaculated to superficial observations and low-quality gossip that would not even pass for tabloid news.
As if Kagan’s red carpet twirls were not enough for the image-obsessed media, The Wall Street Journal ran a front-page picture last Tuesday of Kagan playing softball. The connection between her proclivity for the sport and qualifications for the Supreme Court was somehow lost in the article; however, the New York Post, ensuring that no insinuations were missed, ran the same photo on its front page with the indiscreet headline: “Does a picture of Elena Kagan playing softball suggest she’s a lesbian?”
[media-credit name=”Daily Nexus Photo Archive” align=”alignleft” width=”250″][/media-credit]The softball picture quickly became the biggest news scoop of Kagan’s nomination. Instead of consulting top legal experts and judges regarding Kagan’s judicial qualifications, focus has been on the opinions of MLB players. “She’s got the Barry Bonds choke-up working, maybe that’s two strikes on her,” commented Washington Nationals All-Star Ryan Zimmerman, adding that “it looks like she’s friends with the pitcher or something.” New York Mets catcher Rod Barajas was impressed that “she’s holding the bat the right way.” Not to be outdone in adopting tabloid journalism, the Associated Press turned up a picture of Kagan posing in judge’s clothes in eighth grade. The black-and-white photo would have fit in right next to Brad Pitt’s high school photo in US Weekly’s Celebrity “Yearbook Pics” issue.
Any attempt to criticize Kagan’s stance on the issues (instead of just her stance) or her body of scholarly work (instead of just her body) has been a non-starter. Republicans have accused Kagan of opposing Second Amendment rights because she said as a U.S. Supreme Court law clerk in 1987 that she was “not sympathetic” toward a man who contended that his constitutional rights were violated when he was convicted for carrying an unlicensed pistol. In fact, Kagan told lawmakers last year, “There is no question… that the Second Amendment guarantees individuals the right to keep and bear arms.” More pathetic is the Republican National Committee’s attack on Kagan for saying that the Constitution was “defective.” Conveniently taking the comment out of context and forgetting that the original Constitution excluded women and blacks from the rights of citizenship, the RNC asked, “Does Kagan still view the Constitution ‘as originally drafted and conceived’ as ‘defective’?”
Predictably, Kagan, who has been quietly hailed as a “moderate” by legal scholars, has not received support from a single Republican Senator. I look forward to actually learning about Kagan’s constitutional views during her confirmation hearing. But more importantly, I am dying to know what she will wear and whom she will bring as a date.