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Sparring over SCOTUS

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By Howard Kurtz
Washington Post Staff Writer
Wednesday, April 14, 2010; 7:58 AM

The shadowboxing over the not-yet-named Supreme Court nominee is getting a bit rough.

Lawmakers, advocacy types and pundits are all sending signals to President Obama about who he should--or shouldn't--choose. The libs want somebody who's acceptably liberal. The Republicans are demanding someone who's in the mythical "mainstream" -- as they define it.

The White House plays the game as well, floating trial balloons about possible nominees to please certain constituent groups and give the impression of a broad search. Most of the names the media are chasing will prove to be ephemeral, but there's no surefire way to know in advance who is really a finalist.

All this amounts to the same sort of invisible primary that takes place before presidential candidates actually jump into the race. This time, the goal is not to persuade New Hampshire voters but the only voter who counts, and that's POTUS. It's conceivable that the pressure campaigns could help sink a potential nominee who was on shaky ground anyway.

Or not. Last May, the New Republic's legal affairs editor, Jeffrey Rosen, published "The Case Against Sotomayor," in which he quoted unnamed former clerks saying the judge was "not that smart and kind of a bully on the bench," as one put it. Obama nominated Sonia Sotomayor anyway, but the piece, which I thought contained unfair anonymous shots, was widely quoted by opponents. (Rosen later decided Sotomayor should be confirmed.)

Now we have Elena Kagan in the line of fire, but not for her temperament or brainpower.

I am surprised to see this hit the Web, but Atlantic's Marc Ambinder, widely regarded as a fair reporter, puts it in play:

"Solicitor General Elena Kagan, the woman who tops President Obama's short list for the Supreme Court, is the subject of a baffling whisper campaign among both gay rights activists and social conservatives: those whispering assume she's gay, and they want her -- or someone -- the media! -- to acknowledge it.

"Why gay rights activists? Because Kagan is a public figure and her appointment would represent an enormous advancement for their cause. And social conservatives? Because she'd fit neatly with their narrow paradigm about gender non-conformity and with their overall suspicion that Obama aims to radically re-engineer society. So pervasive are these rumors that two senior administration officials I spoke with this weekend acknowledged hearing about them and did not know whether they were true. People who know Kagan very well say she is not gay, but that's not the point: why is she the subject of these rumors? Who's behind them? And what do they tell us about politics?. . . .

"Kagan hasn't made matters any easier for people who don't see nuance. She is an active and open supporter of gay rights. . . .

"Given the confusion and rumors about Kagan's sexuality, the issue is bound to come up. It's tough for the media to cover, because reporters have trouble writing openly and honestly about a very contested subject, and because they don't want to appear to be outing anyone."

True. And maybe because a candidate's sexual orientation is none of our business?


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