I’m already feeling very uneasy about the Elena Kagan nomination.  First, she wasn’t the nominee I wanted since I was hoping that Obama would nominate a liberal.  On the surface, of course, Kagan is anything but a liberal.  Yes, she does appear to support abortion rights and probably she is a supporter of women’s rights.  But most think that she is not a huge supporter of civil rights and is willing to give up civil liberties when “terrorists” are involved.

And, so, the only absolute positive is that she is a woman.  That’s great!  It would have been devastating if Obama had chosen a man and, yet, two of the supposed four finalists were men.

Most commentators lament her lack of a “record.”  And, so, it’s hard to know what she feels about most issues.  Maybe Obama knows that she is more liberal than she has appeared to be.  But, I would have a hard time now categorizing her in broad terms as anything other than in the center or slightly left of center.  That is far less than what I wanted.  Obama has (again) opted to try to appease the conservatives.  He has (again) shied away from a fight.

But has he really avoided a fight?  The thing that has made me most uneasy is that, because of the lack of a record, many questions will be asked for which we don’t know how she will answer.  Already, many groups are calling on their supporters to contact their senators to urge them to ask certain questions during the hearings.  For instance, NARAL wants to make sure that questions are asked about Kagan’s abortion rights views and Americans United wants questions asked about her views on church-state separation.  It seems to me that some of the questioning is almost guaranteed to open up huge debates by the parties, news media, and American populace.  That’s not bad—I, for instance, would certainly like to know whether she’s the centrist that she seems or is more right or more left.

The kicker would appear to be her sexual orientation.  The Gay Rights section of change.org has a blog about this.  Both supporters and opponents of gay rights want to know what she has to say.  Right-wingers want to know her answer so they can continue their bigotry in arguing that no gay or lesbian should ever have such an important position.  (Does anyone really think that the right-wingers will be satisfied with any answer she gives?)  And even though many LGBT advocates want no questions asked about her sexual orientation, there are others who do want questions asked.  For instance, the change.org blog writes:

I, and many other LGBT advocates, have definitely found ourselves longing for Kagan to make an announcement, because in the world of identity politics I guess the thought of an openly lesbian Supreme Court justice sounds so enticing that we have ignored the fact that it really is absolutely none of our business.  And it sure as hell is not the business of any anti-gay force that will use it to block her nomination.

Even though the White House already issued a stern (and bizarre) statement weeks ago that she is straight, when Kagan faces questions for the first time it seems like a mathematical certainty that she will be directly asked if she is a lesbian. Though I find it disheartening that she will have to face a question like this that truly does not have anything to do with the job she is being nominated for, I am admittedly eager to hear her response. Whether it is something to the effect of “Yes I am… next question,” “No I am not… next question,” or if she takes the road that C.J. Cregg from the West Wing took by saying “it is none of your business,” I hope it puts the issue to rest, so we can get back to worrying if she is progressive enough to step into the shoes of Justice John Paul Stevens.

If it is true that there is “a mathematical certainty that she will be directly asked if she is a lesbian,” the result of that questioning—no matter how she answers—will almost certainly lead to huge debate throughout the country.  And that debate, combined with the debate on the answers she gives to many of the views on which we currently have no idea, will put Obama in the position he has repeatedly tried to avoid.  He will be forced to spend great effort defending his nominee.  In other words, he will have to spend as much effort on the Kagan nomination as he would have had to spend if he nominated a liberal in the first place.

However this all plays out, we should remember that the Obama Supreme Court will be far less liberal than it was with Justice Stevens.  Many commentators, even conservative ones, are saying that Kagan will ultimately be confirmed.  I don’t see any reason to be that optimistic.  But, if she is confirmed, the best we liberals can hope for is that Obama is right that she is “a persuasive leader who could attract the swing vote of Justice Anthony M. Kennedy.”  I wouldn’t hold my breath on that.