Tag Archives: elena kagan

Republicans vow to obstruct anyone Obama nominates to fill Scalia’s seat

Antonin Scalia, who was considered one of most conservative justices on the U.S. Supreme Court, died Friday night while staying at a hunting resort in the Big Bend area of Texas. The caustic firebrand complained about feeling ill the night before he was found unresponsive in his room.

The cause of death was not immediately known.

Scalia was part of a 5-4 conservative majority — with one of the five, Anthony Kennedy, sometimes voting with liberals on the court. In a tie vote, the lower court opinion prevails.

Scalia’s death leaves a 4–4 split between liberal and conservative justices on the bench, which means many important decisions will be tied. An even split between conservatives and liberals on the Supreme Court will leave nearly an entire year in which many major upcoming decisions, including cases involving abortion, affirmative action and immigration policy, will be resolved by lower courts

After offering his condolences to Scalia’s family and paying tribute to him as a “towering figure,” President Barack Obama vowed to nominate a successor to Scalia “in due time.”

Republican congressional leaders, hoping to win the White House next year, fired back that they would refuse to approve anyone Obama nominates — a ploy in which they are well versed. They insist no nomination should be made until the next president takes office, which is nearly 11 months away.

Sen. Harry Reid, the Senate’s top Democrat, said it would be “unprecedented in recent history” for the court to have a vacancy for so long a time.

The Supreme Court will now become a major issue in this year’s presidential race.

Dozens of federal positions remain unfilled due to Republican obstructionism, including the nomination of Eric Fanning to be the next secretary of the Army. The Senate refuses to approve Fanning due to his sexual orientation. He’s stepped down from his post as acting secretary because of the political turmoil.

Last year, Sen. Marco Rubio, R–Fla., scuttled Obama’s nomination of Judge Darrin Gayles, an out gay black state court judge, to serve on the U.S. District Court for the Southern District of Florida.

Scalia, who was selected in 1986 by President Ronald Reagan, seemed to have a mission to move the court to the right. He was a strict constructionist who adhered to legal“originalism,”which he called “textualism.” In other words, judges had a duty to give the same meaning to the words and concepts as they were understood by the Founding Fathers. Because same-sex marriage was not mentioned in the Constitution, written over 200 years ago, Scalia believed that the issue was not a Constitutional one.

A challenge to a Washington, D.C., gun ban gave Scalia the opportunity to display his devotion to textualism. In a 5–4 decision that split the court’s conservatives and liberals, he wrote that an examination of English and colonial history made it exceedingly clear that the Second Amendment protected Americans’ right to have guns, at the very least in their homes and for self-defense. The dissenters, also claiming fidelity to history, said the amendment was meant to ensure that states could raise militias to confront a too-powerful federal government if necessary.

But Scalia rejected that view. “Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct,” Scalia wrote.

Scalia carried his rifle in a case on the New York City subways. Decades later, he taught the Upper West Sider Kagan how to shoot a gun and the two went together on excursions hunting animals.

Scalia was a strong supporter of privacy in cases involving police searches and defendants’ rights. But, a devoted Roman Catholic, he also voted consistently to let states outlaw abortions, to allow a closer relationship between government and religion, to permit executions and to limit lawsuits.

In 2002, however, he surprised SCOTUS observers by opposing the court’s decision to outlaw executing the mentally disabled, despite the church’s rejection of the death penalty. The framers of the Constitution didn’t think capital punishment was unconstitutional and neither did he, he said, adding that judges who follow the philosophy that capital punishment is morally wrong should resign.

A longtime law professor before becoming a judge, Scalia frequently spoke at law schools and to other groups. Later in his tenure, he also spoke at length in on-the-record interviews, often to promote a book.

He betrayed no uncertainty about some of the most contentious legal issues of the day.

“The death penalty? Give me a break. It’s easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state,” Scalia said during a talk that preceded a book signing at the American Enterprise Institute in 2012.

Scalia was in the court’s majority in the 2000 Bush v. Gore decision, which effectively decided the presidential election for Republican George W. Bush. “Get over it,” Scalia would famously say at speaking engagements in the ensuing years whenever the topic arose.

The justice relished a good fight. In 2004, when an environmental group asked him to step aside from a case involving Vice President Dick Cheney after reports that Scalia and Cheney hunted ducks together, the justice responded with a 21-page memorandum explaining his intention to hear the case. He said “the nation is in deeper trouble than I had imagined,” if people thought a duck-hunting trip could sway his vote.

Two years later, The Boston Herald reported that Scalia employed an obscene hand gesture while leaving a church in response to another question about his impartiality. Scalia penned a scathing letter to the newspaper, taking issue with the characterization. He explained that the gesture —the extended fingers of one hand moving slowly back and forth under the raised chin — was dismissive, not obscene.

“From watching too many episodes of The Sopranos, your staff seems to have acquired the belief that any Sicilian gesture is obscene,” he said.

A smoker of cigarettes and pipes, Scalia enjoyed baseball, poker, hunting and playing the piano. He was an enthusiastic singer at court Christmas parties and other musical gatherings.

Born in New Jersey, he was the only child of an Italian immigrant father who was a professor of Romance languages and a mother who taught elementary school. He attended public schools, graduated first in his class at Georgetown University and won high honors at the Harvard University Law School. He taught law and served in Republican administrations before Reagan made him an appeals court judge in Washington in 1982. Scalia and his wife Maureen had nine children.

Scalia’s impact on the court was muted by his seeming disregard for moderating his views to help build consensus.

The friendship between Scalia and Ginsburg inspired the opera Scalia/Ginsburg by composer Derrick Wang. The two once appeared on stage as extras in a performance art the Washington Opera.

In one aria, the Scalia character rages about justices who see the Constitution evolving with society.

The operatic Scalia fumes: “The justices are blind. How can they spout this? The Constitution says absolutely nothing about this.”

The real-life Scalia certainly agreed.

On the record: Quotes from the Supreme Court hearing on marriage equality

Excerpts from arguments before the Supreme Court on April 28 about whether states must allow same-sex couples to marry and whether states must recognize gay marriages performed in other states:

Chief Justice John Roberts, on the institution of marriage: “You’re not seeking to join the institution, you’re seeking to change what the institution is. The fundamental core of the institution is the opposite-sex relationship and you want to introduce into it a same-sex relationship.”

Justice Anthony Kennedy: “The word that keeps coming back to me in this case is millennia, plus time. … This definition (of marriage) has been with us for millennia. And it’s very difficult for the court to say `Oh well, we know better.'”

Roberts, to the proponents of gay marriage: “If you prevail here, there will be no more debate. I mean, closing of debate can close minds, and it will have a consequence on how this new institution is accepted. People feel very differently about something if they have a chance to vote on it than if it’s imposed on them by the courts.”

Mary Bonauto, representing same-sex couples: “In terms of the question of who decides, it’s not about the court versus the states. It’s about the individual making the choice to marry and with whom to marry, or the government.”

Justice Samuel Alito, to supporters of gay marriage: “Suppose we rule in your favor in this case and then after that, a group consisting of two men and two women apply for a marriage license. Would there be any ground for denying them a license?”

Solicitor General Donald Verrilli, representing the federal government: “Gay and lesbian people are equal. They deserve equal protection of the laws, and they deserve it now.”

Kennedy: “Same-sex couples say, of course, we understand the nobility and the sacredness of the marriage. We know we can’t procreate, but we want the other attributes of it in order to show that we, too, have a dignity that can be fulfilled.”

John Bursch, representing states that ban same-sex marriage: “If this court ensconces in the Constitution a new definition of marriage and it reduces the rate that opposite-sex couples stay together, bound to their children, because of that different understanding, even a 1 percent change … is many, many children.”

Justice Elena Kagan:

“It’s hard to see how permitting same-sex marriage discourages people from being bonded with their biological children.”

Roberts: “If Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?”

Roberts, on the question of forcing states that ban same-sex marriage to recognize those unions formed in other states:

“It’d simply be a matter of time until they would in effect be recognizing that within the state, because we live in a very mobile society and people move all the time. In other words, one state would basically set the policy for the entire nation.”

Douglas Hallward-Driemeier, representing same-sex couples: “These petitioners have built their lives around their marriages, including bringing children into their families, just as opposite-sex couples have done. But the non-recognition laws undermine the stability of these families, though the states purport to support such stability.”

Joseph Whalen, associate solicitor general for Tennessee: “Tennessee, Ohio, Kentucky and other states with a traditional definition of marriage have done nothing here but stand pat. They have maintained the status quo. And yet other states have made the decision, and it certainly is their right and prerogative to do so, to expand the definition, to redefine the definition, and then to suggest that other states that have done nothing but stand pat now must recognize those marriages imposes a substantial burden on the state’s ability to self-govern.”

Kagan headed for confirmation vote

Elena Kagan’s detractors and endorsers on the Senate Judiciary Committee reached an agreement following a four-day hearing on Kagan’s nomination to the Supreme Court: She’s bound for confirmation.

“Solicitor General Kagan will be confirmed,” U.S. Sen. Patrick Leahy, D-Vt., told reporters during a pause in testimony.

“I assume she will be,” Sen. John Cornyn, R-Texas, said in a separate statement.

Kagan’s nomination will go to the Senate later this summer with a round of endorsements, including one from the Human Rights Campaign, the nation’s largest LGBT political group.

“Kagan has demonstrated her understanding of the Constitution and the protections it provides all Americans” said HRC president Joe Solmonese. “She has articulated a commitment to the substantive protections of liberty guaranteed by the Constitution – an issue of the utmost importance to the LGBT community. We are confident that Elena Kagan is well qualified to become our nation’s next Supreme Court justice.”

Solmonese focused on Kagan’s testimony recognizing the constitutional right to privacy found in the 14th amendment, which was first articulated in the landmark case Griswold v. Connecticut, and that Kagan indicated Griswold is settled law.

That case is important to Solmonese and other LGBT politicos because it laid the foundation for recognition of the fundamental rights of LGBT individuals.

HRC also heralded Kagan’s record on LGBT issues while working in the Clinton White House and as dean of Harvard Law School, where she defended the school’s anti-discrimination policy and challenged the military’s “don’t ask, don’t tell” policy.

During her testimony before the Senate committee, Kagan called “a profound wrong – a moral injustice of the first order.”

A number of organizations and individuals – in addition to the senators on the committee – submitted statements supporting or opposing Kagan’s nomination that contained no surprises.

The NAACP Legal Defense and Educational Fund endorsed the nomination, stating, “Our review of her record leads us to conclude that she has the professional credentials, respect for the institutional roles of all three branches of federal government, intellect and independence of mind, ability to build consensus, and commitment to justice required of one who would serve in this critical role.”

The National Gay and Lesbian Bar Association wrote, “We look forward to the day when the makeup of the federal judiciary mirrors the diversity of our great country, and we believe the nomination of Ms. Kagan would be a step in that direction. Although women comprise approximately 55 percent of the U.S. population, Ms. Kagan would only be the fourth female justice in the 200-plus year history of the court.”

The Leadership Conference on Civil and Human Rights stated, “In every step of her career, Elena Kagan has distinguished herself through her outstanding intellectual credentials, her independence of thought, and her strong respect for the rule of law, establishing herself beyond question as qualified and ready to serve on the Court.”

The confirmation hearing record also contains a statement from Army First Lt. David Tressler about Kagan’s position on military recruitment at Harvard Law School. “She always expressed her support for those who serve in the military and encouraged students to consider military service” stated Tressler, currently serving in Afghanistan. “It was clear she was trying to balance the institution’s values underlying its anti-discrimination policy with her genuine support for those who serve or were considering service in the military. Indeed, her sense of DADT’s injustice seemed to grow out of her belief in the importance and value of military service. I remember that she repeatedly said as much while dean.”

Kagan, if confirmed, would take retiring Justice John Paul Stevens place on the Court.

Kagan on way to Supreme Court confirmation

WASHINGTON (AP) — President Barack Obama’s pick for the top U.S. court, Elena Kagan, is speeding toward confirmation, with Republicans showing little appetite for a long-shot attempt to block her.

Barring an unexpected turn, Kagan will succeed retiring Justice John Paul Stevens and become the fourth female justice in the U.S. Supreme Court’s history. It would be the first time that three of the court’s nine justices were women.

“Solicitor General Kagan will be confirmed,” said Democratic Sen. Patrick Leahy, who chairs the Judiciary Committee considering her nomination.

Republicans sparred with her over abortion, gays in the military and other divisive issues, but Jon Kyl, the Senate’s No. 2 Republican, said it would “highly unlikely” that Republicans would attempt a filibuster, a delaying tactic meant to block voting.

Republican committee member Sen. John Cornyn, when asked if Kagan was going to win confirmation, replied “I assume she will be.”

Kagan, 50, spent her last day before the committee Wednesday trying to reassure conservatives that she would be able to separate her personal and political views from a job as a justice on the ideologically split Supreme Court.

“Every judge has to do what he or she thinks the law requires,” she said. “But on the other hand, there’s no question that the court is served best and our country is served best when people trust the court as an entirely nonpolitical body.”

She later added: “As a judge, you are on nobody’s team. As a judge, you are an independent actor.”

Republicans still weren’t convinced, although her confirmation would not change the composition of the court of four liberals, four conservatives and swing vote Justice Anthony Kennedy.

Senators finished their public questioning of Kagan on Wednesday, but the confirmation hearing will not wrap until late Thursday with testimony from outside witnesses.

Once the public witnesses finish, Leahy will set a confirmation vote for Kagan in the Judiciary Committee, where Democrats hold a 12-7 advantage over the Republicans.

The full Senate, where Democrats control 58 votes to the Republicans’ 41, is likely to confirm the nomination before leaving for its August recess.

The Supreme Court is one of three branches of the U.S. government, designed in the Constitution with separate but equal powers. The nine-justice court was established to decide on the constitutionality of laws and the way they have been interpreted by judges in lower courts. That gives it huge power in deciding whether laws enacted by Congress and their application by the president’s executive branch are constitutional.

Senate panel opens Kagan high court hearing

WASHINGTON (AP) — President Barack Obama’s Supreme Court nominee began a week of intense examination Monday by a Senate panel that will scrutinize her qualifications for a life term on the country’s highest legal authority.

In a highly charged partisan atmosphere, Republicans planned to focus on Elena Kagan’s lack of judicial experience and liberal political background, but she is expected to win approval from the Democrat-dominated panel and confirmation by the full Senate.

Senate Judiciary Committee chairman Sen. Patrick Leahy, a Vermont Democrat, noted that Kagan, if confirmed, would be the fourth woman to take a seat on the high court. She also would be Obama’s second selection to don the robes of a justice. The first was Justice Sonia Sotomayor, who was seated on the court last year.

“No senator should seek to impose an ideological litmus test to secure promises of specific outcomes in cases coming before the Supreme Court,” Leahy said.

Before the hearing began, the White House released remarks Kagan plans to make at the opening session, in which she focused on the American tradition of equal justice under the law.

“What it promises is nothing less than a fair shake for every American,” Kagan planned to say.

The 50-year-old Kagan now serves Obama as solicitor general, the country’s top lawyer who represents the government in cases before the Supreme Court. She brings a stellar legal resume to the job, with the exception of never having served on the bench.

Her background includes education at Princeton, Oxford and Harvard. She served as a clerk under liberal court icon Thurgood Marshall, worked in private practice, taught at and became the first woman dean at Harvard Law and served in the White House under former President Bill Clinton.

Kagan will speak of her varied background and lessons she took from those assignments.

“I will listen hard, to every party before the Court and to each of my colleagues,” excerpts of Kagan’s statement said. “I will work hard. And I will do my best to consider every case impartially, modestly, with commitment to principle, and in accordance with law.”

She was expected to be a liberal stalwart on a court that became more conservative with appointments during the administration of former President George W. Bush.

While a liberal by background, Kagan’s ascension to the court was unlikely to change its liberal-conservative balance in that she will be replacing retiring Justice John Paul Stevens who has historically voted with his three liberal colleagues on the nine-judge panel. The court interprets the constitution as it applies to legal cases that have moved through lower courts.

The court is one of the United States three branches of government, along with the White House-run government administration and the lawmaking U.S. Congress. Under the Constitution, the president has the duty to nominate new justices when a seat on the court becomes vacant. The Senate then must confirm or reject the nominee. A president’s choice is rarely turned back by the Senate.

Republicans have complained loudly about Kagan’s lack of judicial experience and about her politics, but she was broadly expected to win approval before the Supreme Court ends its session in August. She would become the youngest member and only the fourth woman to sit on the Court. Her swearing-in would mark the first time three women have presided there at the same time.

In 1999 Clinton nominated her for a seat on the federal appeals court in Washington, but the Republican-controlled Senate never acted on her nomination. The seat eventually went to future Chief Justice John Roberts.

Sen. Jeff Sessions of Alabama, the top Republican on the Senate Judiciary Committee, sees Kagan as a “dangerous nominee” given her relative youth, her thin legal record, liberal bent and an affinity for activist judges.

In a press conference at the conclusion of the weekend’s G-20 summit in Toronto, Obama rejected that argument.

He pointed out that Kagan “has the support, by the way, of a number of very conservative jurists who she’s worked with. So, as I examine some of the arguments that have been floated against her nomination over the last several weeks, it’s pretty thin gruel.”

Justice Antonin Scalia, the high court’s most outspoken conservative has framed Kagan’s lack of judicial experience as an asset.

With the nation in the midst of the Gulf of Mexico oil spill and disarray in the Afghan war and its high command, Kagan’s hearing has received little of the ballyhoo that surrounded Obama’s first nominee, now-Justice Sonia Sotomayor.

Regardless, Kagan’s hearing is taking place in an election year in which 36 seats in the Senate are up for grabs. Six are held by members of the Judiciary Committee.

Democrats were likely to promote Kagan’s pragmatic streak and her legal acumen. Republicans are examining her experience from other angles, particularly her lack of any time on the bench, her long political connections to Democratic causes and an incident during her tenure as dean at Harvard.

For a time she refused to give military recruiters access to the law school’s career services office, over the “don’t ask don’t tell” policy against openly gay soldiers. When the university was threatened with the loss of federal funding, she dropped the ban.

Kagan sparks little debate as hearings approach

WASHINGTON (AP) — When President Barack Obama brought Republicans his wish list over lunch this week, GOP senators criticized virtually every goal — except confirming Supreme Court nominee Elena Kagan.

In an election year consumed by fights over health care, Wall Street and the big oil spill, Kagan’s quiet march toward a lifetime seat on the nation’s highest court is, at least for now, causing little stir.

That’s no accident. Republicans and Democrats alike acknowledge privately that one of Kagan’s major selling points as a Supreme Court nominee is the fact that just over a year ago, the Senate vetted her for the post of solicitor general — the top lawyer who argues the government’s cases before the court — and she won confirmation with seven Republican votes.

That made her an easy pick for a president battling low approval ratings and juggling an ambitious agenda — and one that ranks fairly low on lawmakers’ radar screens.

“So many of our members on both sides are involved in so many other issues,” said Sen. Jeff Sessions of Alabama, the top Republican on the Judiciary Committee that will hold Kagan’s confirmation hearings.

Senators will start paying more attention in late June and early July, when they get the chance to question Kagan under oath and then debate her nomination on the floor, Sessions added. “I hear interest. The American people are interested,” he said in an interview Wednesday.

Sen. Bob Menendez, D-N.J., the head of his party’s Senate campaign committee, said GOP senators will likely want to use her nomination to motivate their conservative base, but it will be difficult to do so given that some of them backed her in the past. “If they beat up on her without real substance, it’s a risk for them,” Menendez said.

And there’s little of substance — at least for now — to power opposition to Kagan. The 50-year-old former Harvard Law School dean has never been a judge and litigated only a handful of cases, so she has a thin public record virtually devoid of ammunition for her critics.

Democrats have more than enough votes to confirm Kagan, and so far Republicans appear to have little appetite for trying to block her through a filibuster.

Things could change quickly, however. Strategists on both sides note that even the seemingly smoothest-running confirmation process can rapidly go wrong with a bombshell revelation about the nominee.

For now, Republican criticism is focusing on her role in barring the military from Harvard’s job recruitment office in protest of the prohibition against openly gay soldiers. GOP senators have faulted her for her lack of experience as a judge or courtroom lawyer. And they say they worry that, as a former member of Obama’s team, she would be a Supreme Court rubber stamp for the president’s policies.

But Republicans have for the most part stayed quiet about Kagan, biding their time until they can learn more about her and the public is paying closer attention to what they have to say. They’re hoping a new trove of information on Kagan — her yet-to-be-released files as a Clinton administration lawyer and policy adviser — will yield more details about her views and judicial tendencies.

Sessions is promising to ask for a delay of Kagan’s confirmation hearings, currently scheduled to begin June 28, if the records aren’t available well in advance.

“I don’t believe I can acquiesce in a hearing that’s not held after a reasonable time to examine any public record,” Sessions said Wednesday. “We need them in advance of the hearing and we need time to examine them, and (see) if they trigger genuine issues that need to be examined in more depth.”

Still even Sessions is hard pressed to draw attention to Kagan. A cable news interview he scheduled Wednesday morning to talk about her turned into an exchange about the Gulf of Mexico oil spill — with no mention of Obama’s nominee.

Release of the Clinton-era documents could put a quick end to the lull. The nation’s archivist, working with staff at the William J. Clinton Presidential Library in Little Rock, Ark., has said he’ll begin turning over portions of the 160,000 pages of records by next week.

In the meantime, Democrats have been keeping up a steady stream of public statements defending Kagan against any GOP criticism. Sen. Patrick Leahy, D-Vt., the Judiciary Committee chairman, said Republicans should stop their “overheated rhetoric” about Obama’s nominee and give her a chance to answer questions at her confirmation hearings.

Kagan herself has acknowledged that the hearings will be the first chance the public and most senators have to learn important information about her.

“She understands the value of being able to express her thoughts and her philosophy to provide a certain level of comfort as well as understanding of the role that she will play on the court, (where she) has the potential to influence American society for many decades given her relatively young age,” said Sen. Olympia J. Snowe, R-Maine.

Snowe, one of the seven Republicans who voted to confirm Kagan as solicitor general, has praised her as qualified and balanced but said she wants to “wait and see” before committing to voting for Kagan again.

Should we ask if Supreme Court nominee is gay?

She plays softball. Huge hint, right?

She’s 50, single and has a short haircut. Yup, definitely a lesbian.

Or is she? And if so (though that appears to be a big “if”), so what? Should it matter?

These are questions that have circulated about Elena Kagan for a while. But since President Barack Obama introduced her as his next nominee to the U.S. Supreme Court a week ago, the speculation has never been greater — or the handling of it more awkward.

It’s a sign that, in a nation where gayness is as mainstream as ever, sexual orientation is still a delicate topic for anyone in America, across the spectrum of beliefs and politics.

“Even the leadership of the Democratic party is still uncomfortable handling the issue,” says Kenneth Sherrill, a political scientist at New York’s Hunter College who specializes in the politics of gay and lesbian rights.

“They don’t know how to handle the question with a ‘So what if she is?’”

And should we even be asking, anyway?

Polls, after all, show that Americans are increasingly accepting of lesbians and gay men. Popular TV shows like “Modern Family” often have gay characters and plotlines. And these days, it’s common for people to say they have a family member or friend who’s gay.

Yet this also a country where, for gay public officials, coming out is still often a big deal. And while many Americans are generally more accepting of gay men and lesbians, only 39 percent of adults support the legalization of same-sex marriage, according to a recent poll from the Pew Research Center.

Those are tough issues to ignore when you’re talking about the highest court in the land, which may well end up tackling the issue of same-sex marriage at the federal level.

“In a perfect world, we would not be talking about this. However, it is understandable that, at this time, it would be a risk for a Supreme Court nominee to be perceived as a homosexual,” says Mark Osler, a professor at Baylor Law School in Waco, Texas, who has argued cases before the Supreme Court.

“It would appear, at least from the Obama administration’s reaction, that they don’t think the country’s ready for that conversation,” he says. “And they may well be right.”

The irony in all of this is that Kagan may very well be straight.

A White House official told The Associated Press on Friday that Kagan said she was not a lesbian after media reports on the issue first surfaced while Obama was contemplating his choices for the court. The official would provide the statement only on condition of anonymity.

Eliot Spitzer, who attended Princeton with Kagan and who resigned as New York governor over a prostitution scandal, told Politico: “I did not go out with her, but other guys did.”

The recent days’ eruption of conversation, though, isn’t the first. On April 15, four weeks before Obama nominated Kagan, the White House rebuked CBS News for publishing an online column by a Republican blogger who wrote that Kagan could become the “first openly gay justice.”

White House spokesman Ben LaBolt publicly criticized the item, saying it made “false charges,” a term that upset those who thought the word “charges” made it sound like there would be something wrong if Kagan were a lesbian. LaBolt later said he was referring to the blogger’s suggestions that Obama had an ulterior political motive: to please gay rights activists important to his campaign operation.

Then came the announcement last Monday that Kagan was the president’s choice. By day’s end, “Elena Kagan personal life” was among the top searches on Google, an indication that the public was curious about more than just her stance on the issues.

Some say that posing the sexual orientation question is just another way to undercut powerful women who are routinely held to a different standard for everything from the way they dress to the way they wear their hair, or even their emotions.

“No man (who’s nominated for the Supreme Court) would be asked this question,” insists Birute Regine, author of the book “Iron Butterflies: Women Transforming Themselves and The World.”

Back in 1990, when now retired Justice David Souter was confirmed, his “bachelor” status was noted but his sexual orientation was never questioned, at least not publicly. Gay rumors did, however, regularly circulate about former Attorney General Janet Reno and about Donna Shalala, the former head of the U.S. Health and Human Services.

Shalala responded to claims that she was a lesbian that came not from conservatives, but from a gay organization whose aim was to “out” public officials. “Have I lived an alternative lifestyle? The answer is no,” she said in an interview with The Capital Times newspaper in Madison, Wis., in 1993, when she was a nominee for her federal post.

Though no male Supreme Court nominee has faced these questions — nor have the women on the high court, who have all been married — the fact is that male public figures, whether politicians, celebrities or sports figures, regularly deal with speculation about their sexual orientation, too.

Rumors that New York Mets catcher Mike Piazza was gay were so persistent, for instance, that he had a press conference in 2002 to make it clear that he was straight. At the time, he said that players would accept an openly gay teammate. “In this day and age, it’s irrelevant,” he said. “I don’t think it would be a problem at all.”

It would seem that it’s about as “irrelevant” today, though few believe a similar news conference from Kagan is likely.

Even without one, though, this isn’t a question members of the mainstream media usually ask. And some think that’s the way it should’ve stayed.

“The press needs to be grown-ups themselves and decide that there is no reason to write about this aspect of a person’s private life,” says James Gomes, director of the politically oriented Mosakowski Institute of Public Enterprise at Clark University in Worcester, Mass. The media, he says, “should be more dignified.”

Regardless, many bloggers from a wide spectrum of viewpoints continue to call for Kagan to declare her sexual orientation.

“It’s time we got over the myth that what a public servant does in his private life is of no consequence,” wrote Bryan Fischer, who blogs for the conservative American Family Association and doesn’t think a lesbian should hold such a powerful post.

Some gay bloggers, meanwhile, implied that Kagan should make a public statement out of respect for herself and the gay community.

“In a free society in the 21st century, it is not illegitimate to ask,” wrote Andrew Sullivan, a gay blogger for The Atlantic. “And it is cowardly not to tell.”