The White House made what to us looks like a tactical error yesterday when it insisted that CBS News pull down a blog post that indicated Elena Kagan, the Solicitor General and a frequently named candidate to replace John Paul Stevens on the Supreme Court, is gay. Former Bush-administration aide Ben Domenech wrote on CBSNews.com that Obama would “please” a lot of his base if he selected America’s “first openly gay justice.” White House spokesman Ben LaBolt reached out to the network and said that Kagan was not gay, and asked for the post to be taken down. When CBS initially resisted, the White House upped the ante. Former White House communications guru Anita Dunn, who is consulting on the Supreme Court choice, said nastily, “The fact that they’ve chosen to become enablers of people posting lies on their site tells us where the journalistic standards of CBS are in 2010.”
According to the Washington Post, LaBolt said he reached out to CBS because the blog post had “made false charges.” Charges? Like they claimed Kagan committed a crime?
This looks bad. As we pointed out earlier, the “There’s Something Gay About Elena Kagan” story line is going to be part of any nomination process involving her. The White House isn’t going to be able to stop the press from writing about it, so they shouldn’t try. They’re putting themselves in a bad position by giving this story line credit, and making their denials that she’s gay a story in itself. If Kagan isn’t gay, people will say she is anyway, but no one will be able to prove it. Republicans won’t have the guts to get up and call her gay in nominations hearings if it’s just a rumor. They’ll just go after her record and say she supports gay rights, which isn’t particularly worse than what they alleged about Sonia Sotomayor’s positions.
If she is gay, and a news outlet finds proof, the White House has basically disqualified her for the Supreme Court by making a lie part of her fundamental story (and by making it seem like being gay would somehow make her unfit for the role). The reason this is a rumor in the first place is that many members of the Harvard community who knew Kagan while she was the dean of the law school there really do believe Kagan to be gay, and to have a partner. Because of that, this story isn’t going away.
At the end of the day, it’s unattractive of the White House to react to someone calling Kagan gay the way they would if someone had said she did something illegal or amoral. And by doing so, they’ve called much more attention to the issue than they would have if they had just let a random opinion blog post on CBSNews.com stand. Are they going to go after every news outlet that alleges there’s something gay about Elena Kagan? That’s not going to work, and will only make the situation worse. The whole “is she or isn’t she” plot will profoundly undermine her credibility. If the White House continues down this road, they’ll have removed one of their top candidates for Supreme Court from consideration before she could even truly be considered.