Tag Archives: Elena Kagan

Republicans don’t hate Thurgood Marshall because he’s black, they hate him because he’s a hipster

The front page of the Huffington Post recently featured an article about how Republicans are taking the opportunity of Elena Kagan’s Supreme Court nomination hearings to attack former justice Thurgood Marshall.

According to the article, after but the first day of Kagan’s confirmation hearings, Marshall’s name was mentioned 35 times. Why mention Marshall? Well, Kagan clerked for him back when she was a budding lesbian maybe-lesbian she’ll come out a few years after being seated on the court law student.

This should be no big thing. Nominees clerk for justices all the time. Liberals. Conservatives. Whatever Kozinski is. So why is the GOP piling on Marshall? He’s not any more liberal than other supposed liberal judges. He was approved by a 69-11 vote, including several Republicans. And in fact, one could argue that he was distinctly more reserved than his respected colleague Justice William Brennan Jr.

So why go after Marshall.?

One could argue that Republicans are engaging in their tradition dog-whistle politics, specifically bringing up images of black men to invoke subtle and inherent racism that still exists in our society. It happened with Willy Horton and Revolving Door ads. States rights and welfare queen rhetoric.

No way! Republicans aren’t that low, that predictable, that pathetic. The truth is much more acceptable.

Republicans hate Thurgood Marshall because he is a hipster.

Look at this fucking hipster.

Look at him! Those stupid black, plastic glasses. That gross mustache. That wanna-be Mad Men grey suit. Where did Thurgood study law, some fucking coffeehouse in Williamsburg?

And what kind of name is Thurgood? Some fucking hipster name!

And his dissent in Personnel Administrator MA v. Feeney was obviously written ironically.

Don’t believe me? Don’t think Thurgood Marshall was a hipster? Look at this:


A contemporary hipster

Is that a photo of a young Thurgood Marshall if he were Asian? No! It may look strikingly similar, but it’s just an average hipster. A loathable, mincing hipster you just want to punch in the face as he spends daddy’s money on women’s clothing and listens to bands that no one likes ever. No wonder Republicans are skipping no opportunity to wail on Thurgood and tie Elena Kagan to him at all costs. Kagan admires Thurgood so much, she’d probably just spend her whole tenure on the court drinking PBR and listening to oh, you haven’t heard of them yet, but a friend gave me a rec, something with dolphins in the name Animal Collective , skipping out on hearings to go to Bonaroo, just like her hipster hero.

And if all this sounds preposterous to you, if my argument is just silly, then I’m not sure what any other justification is. Because Republicans certainly aren’t bringing up Marshall because he was the first black justice. The only answer is that Thurgood Marshall was a fucking hipster, and this completely justifies any derision of him.

Elena Kagan is a New York, Jewish, left-wing, liberal, intellectual, Central Park West, Brandeis University, the socialist summer camps and the, the father with the Ben Shahn drawings, right, and the really, y’know, strike-oriented kind of, red diaper, stop me before I make a complete imbecile of myself

After long thought, I think the best popculture response to the Elena Kagan nomination is this:

Alvy Singer’s rant against Allison Porchnik in Annie Hall sums up my gut reaction after these past few days. Usually when I reference Woody Allen, its to lend praise to our Jewish alpha dog, who first introduced the idea that the nebbish, neurotic Jewish guy can actually get the girl… kinda. But in this circumstance the line speaks for itself. However, thats not to say that my only opposition is out of some sort of self-loathing or Texan hatred of everything Northeast. Though that may be part of it. Indeed, my strongest reason for opposition (or at least not complete support) is political. She is not liberal enough.

Elena Kagan isn’t simply liberal enough. Despite accusations of her insane socialism, largely based on her Princeton senior thesis, which I have yet to read (PDF: kagan thesis), she has shown a record of middling DLC-style political compromise . There are legitimate arguments to be made for strong liberal positions on the court. Where is the justice arguing for substantive due process protection of medicinal marijuana, not to mention gay marriage? Where is the justice arguing for broader expansion of the equal protection clause, not to mention restarting privileges and immunities? These arguments exist, and in fact have been almost made on the Supreme Court (Cruzan v. Director, Missouri Dept. of Health, Lawrence v. Texas ). But the real person to blame for this isn’t Kagan, who must be honest to herself, but Obama himself for nominating her. Former Justice Joseph Crouch explains how I think lots of people feel:

(BTW, you should totally buy the West Wing box set. It is awesome.)

Now, one could argue that her past positions have not been judicial, but political, and thus her actions should be viewed through a different frame. Or that while she has a short record, Obama can guarantee a strong liberal position. And one could argue while that position may be far out where they should be, the goals now shouldn’t be to expand the liberal agenda, but to maintain the gains made over the past decades. I disagree.

I do not expect a broadening of liberty interests to be the majority opinion, but I want someone on the court to just make the arguments. Young conservatives read the opinions of Scalia and Thomas, and it gives them a drive and inspiration to power their youthful political interests. Liberals have to look back a few decades to really get that inspiration. Even simply considering whether to get involved in the legal field, strong conservatives see that they can go far if they stick to their principles, just as the relatively young Roberts and Alito were rewarded. Liberals get the message that if they want to succeed, they need to keep a clean record and not create a strong record for liberal causes. Democrats seem to view that record as a liability, rather than how conservatives see their own similar recrds as a strength. This merely drives liberal opinion to the center and alienates liberal ideas that are reasonable and rational, yet viewed as too far out. And those views will continue to be seen as too far out by the public, while far-winger conservative ideologies in the form of  justices’ opinions will be thrust into the public sphere as supposedly normal political views, hiding their extremity.

And what is the purpose of opposing this conservative march if those who fight for strong liberal causes get left behind when it comes to choose our best? A functioning political system needs strong opposing parties, with competing ideas, and the Democrats are laying down on their job.

Indeed, it doesn’t just show that Obama has refused to recognize the best and brightest legal mind amongst liberal thinkers, but it shows that he is betraying one of the implicit messages of his 2008 campaign: The importance of grassroots work.

As Obama’s personal origins and the style of his campaign seemed to communicate: greatness can come from anywhere. Whether the small town volunteers who made history or Obama’s humble beginnings and fairytale rise, it was about eschewing the usual power structure and replacing it with people power. But for his supreme court nomination, Obama went with the traditional Ivy League, Upper West Side, Harvard Law School, Clintonista insider, almost as if she were a creation by Mark Penn himself.

There were great candidates with strong liberal opinions, from outside the usual view political realms of influence. Great justices from Texas, Montana, or even California, who could disrupt the usual power patterns and show students all across the country that you don’t need to go to an Ivy League school to make it to the top: Pedigree is not the measure of the day, but talent and achievement. But that is not what Obama is communicating with this nomination.

Even just choosing someone who didn’t go to an Ivy League school would send the message that states are not destiny. We can have smart, educated liberal justices in Red States, just as we can from Blue States. This is something that Obama himself talked about oh so long ago in 2004″

We have Supreme Court Justices in the Red States… or do we? Obama doesn’t seem to think so, with his New York domination. His choices may be fine justices, but it is a sign that liberals from Red States shouldn’t aspire or work hard, because they won’t be recognized. And it sends a message to people in Red States that liberals do not care about them, and when push comes to shove, Democrats will alway choose the Northeast buddy… giving in to Harvard nepotism. There used to be a time when Obama thought it was important to send a message anyone can rise to greatness, that America has a place for a skinny kid with a funny name.

But I guess that idea is old hat. Go back with the tried a true, Harvard educated, East Coast Elite, Smartest Guys in the Room. That’s worked out great for Democrats in the past.

I speculated on the Sexuality of Supreme Court Justices before it was cool

Is Elena Kagan a gay? Thats the question that people all over the nation aren’t asking, but are insinuating to the point of preposterousness. Luckily, Gawker has put together a summary of the insinuations that Kagan is a lesbian:

The Haircut: Its not business short, its lesbian short.

She’s never been married: No even Sotomayor style where she got engaged but it broke apart.

She opposed don’t ask, don’t tell: Because civil liberties are totally gay

She played softball: Also, she played on the Supreme Court clerk’s basketball team

She wears plaid flannel: The only pictures we have of her not in a business suit, or dressed as a judge for her high school yearbook, are her in plaid flannel

She never denies that she’s a lesbian: Because its true

She’s a former student newspaper editor with the nickname “shorty“: Because anyone with those qualities is a total fag.

However, while all this speculation about Kagan’s sexuality is fun and a great way to fill the 24-hour news cycle, its old news. I was doing all this before it was cool, speculating about the sexuality of our first Hispanic Supreme Court Justice, Benjamin N. Cardozo, in the Cardozo Jurist (PDF: cardozo some kind of sexual):

“As the news of Yeshiva University’s appalling attitude towards homosexuality spreads throughout Cardozo, students should be shocked, but not for the reason they may think. Sure, there is the hypocrisy of a historically discriminated demographic attempting to stifle another historically discriminated demographic. Not to mention an attitude towards homosexuality that seems more at home in Iran. But what makes the whole situation so shocking is the sheer irony is that it’s occurring at a university that named its law school after Benjamin N. Cardozo, a man whose own sexual orientation is quite questionable.

Admittedly, it is not academically honest to impose contemporary concepts of sexuality upon other times, cultures or societies. Furthermore, facts about Cardozo’s sexual orientation are limited to what is documented in the historical record, which is unfortunately sparse due to Cardozo’s private nature. However, it is not too much of a stretch to say that Cardozo was some sort of a sexual, and it ain’t hetero.

So while there is no direct evidence proving Cardozo’s sexual orientation, there is hearsay and conjecture, which are kinds of evidence.

As far as the current historical consensus says, Cardozo can join Isaac Newton among history’s famous life-long virgins. However, that does not mean he was never interested in women. In fact, he was very interested in one: his sister, Nellie. According to Richard Polenberg’s book on Cardozo, our namesake judge admitted that he “never could give Nellie the second place” in his life. This sort of sibling devotion would seem out of place in the Osmond family, let alone in an established New York, Jewish aristocracy.

Then again, this devotion to his sister may have been exaggerated by Cardozo’s friends. However, they did not tell these tales to spread rumors about Cardozo’s deviant sexuality. On the contrary, they spread the rumors to create an excuse for his non-traditional sexual habits. These are the very same friends who often described Cardozo as beautiful, exquisite and sensitive. Or as Seinfeld would put it in an outdated reference: thin, single and neat. Not that there is anything wrong with that.

Even as a child, Cardozo was personally tutored by Horatio Alger, who himself was haunted by accusations of homosexuality and pederasty. One might as well say that Cardozo enjoyed spending his salad days drinking wine with the priest from Doubt.

On the other hand, Judge Learned Hand is quoted as saying that Cardozo had “no trace of homosexuality anyway.” But that doesn’t really count because Learned Hand never even made it to the Supreme Court.

Indeed, a smattering of anecdotes does not mean that Cardozo would have been the president of OUTlaw at turn of the century Columbia. However, one must admit that Cardozo’s sexual history does not conform to contemporary standards of heteronormativity. In fact, the best way to describe Cardozo’s personal life would be: queer.

In the end, historical density and Cardozo’s own privacy make his sexuality a question that will never get a definitive answer. But this mysteriousness does not mean it should never be discussed, shoved in a corner because of a perverted sense of “modesty.” Cardozo’s personal history is not something that should be treated in a discreet manner just because it may ruffle some issues of sensitivity. Academic integrity demands that universities leave no stone unturned and no question unasked in the constant adventure of academia. However, if President Joel and Rabbi Reiss have their way, we would halt at the first sense of discomfort, never leaving sight of the intellectual shore. And if that is how the current administration wants to run Yeshiva, and Cardozo, then they should put it in the prospective student paraphernalia, because that is not the sort of law school I signed up for.”

Now, as I have become accustomed to, my column received an angry response the rhetoric of which hints that the author either did not read the entire column or simply didn’t get the point. Given the string of factual rebuttals in the response, this one is probably in the latter category. (PDF: Reject Cardozo sexuality 1, Reject Cardozo Sexuality 2)

Despite the actual titles, I believe a more accurate headline would have been “Response to Evan: Nuh-uh!” Read the whole thing if you want, but it can be summed up with one line:

“With all due respect to Mr. Mintz, to advance such a provocative idea only to then ultimately plead historical inscrutability is an act of intellectual dishonesty.”

Of course it is intellectual dishonesty! I admit to that in my second paragraph:

“Admittedly, it is not academically honest to impose contemporary concepts of sexuality upon other times, cultures or societies.”

Of course its not intellectually honest, but its also lots of fun!

In the end, my column was not an academic paper, it was a column in the student newspaper, with the purpose of making a point and possibly be entertaining. Thus is the essence of punditry (?).

In conclusion, Kagan is just as gay as Cardozo.

EDIT: They’re also both Jewish, which is as close as you can get to being gay without being Asian or French.