Because for some conservative activists, being in support of marriage equality is grounds for disqualification to serve on the Supreme Court, whether or not Obama is considering a gay candidate for the position is bound to be a source of major controversy as he moves toward replacing outgoing justice John Paul Stevens. Even vocal support for gay issues will be problematic — as is already proving to be the case for Solicitor General Elena Kagan, whose name is among the top handful most mentioned in relation to the job. Kagan was the dean of Harvard Law School and in her current post shapes the Obama administration's legal policy. While lacking a history on the bench and courtroom experience in comparison to other top candidates, she has extensive credentials in government and in education, and clerked for Supreme Court Justice Thurgood Marshall. She also once signed, along with 40 other Harvard professors, a brief urging the Supreme Court to allow law schools to limit military access to campus recruiting events because of the "don't ask, don't tell" policy that violates university anti-discrimination policies. In an e-mail, she has called the policy "a profound wrong — a moral injustice of the first order."
According to the Journal today, "conservative activists are homing in on a high-profile stand she took on gay rights as a centerpiece of their opposition if she is nominated to the Supreme Court." From the Journal:
"Ms. Kagan's extreme rhetoric makes it highly likely that she also favors same-sex marriage, both as a matter of policy and as a supposed federal constitutional right," officials from the American Family Association, Focus on the Family and other conservative groups warned in a letter. In written follow-ups to the confirmation hearing, Sen. John Cornyn (R., Texas) asked Ms. Kagan if the Constitution provided for gay marriage. "There is no federal constitutional right to same-sex marriage," she responded. She added that she didn't recall ever expressing an opinion on whether there should be such a right.
Queerty.com observes that in this article about "conservative activists honing in," the paper doesn't actually cite any activists that are currently "honing in" on the gay issue for Kagan. It just rehashes quotes from her previous nomination hearings. What the Journal is doing is trying to get a jump on the inevitable gay-rights story line that will come out if Kagan does end up as a serious contender for the Supreme Court. Remember when Michael Wolff wondered whether Sonia Sotomayor was gay, merely because she was single? It's not hard to picture the speculation that will go on regarding Kagan, sad as it is to say, based on personal appearance alone — not to mention gay blogs already propogating Harvard rumors that she is, in fact, gay.
If the gay issue becomes heated enough, it could end up backfiring on Republicans who move to block her nomination (as some voted when she was up for solicitor general, over the "don't ask, don't tell" issue). This isn't 2004, when horror stories of "activist judges" in favor of gay rights helped sweep Republicans, including George Bush again, into office. It's a time when the GOP is on the verge of being firmly labeled the "party of no" and fanners of overheated, hateful rhetoric. But even if it doesn't get that heated, remember that poll indicating that a majority of Americans would support a gay man or woman on the Supreme Court? If the "conservative activists" cited by the Journal actually do start weighing in, don't expect that to get any traction at all.