United States President Barack Obama’s nomination of his Solicitor General, Elena Kagan, to the Supreme Court of the US (Scotus) has provoked a clamouring for answers from the popular media — but not to the questions that might actually matter (such as why he passed over more progressive candidates such as Judge Diane Wood).
The fact is that Kagan has no judicial experience, having come from an academic career culminating in her years as dean of Harvard Law School and a public service stint as a legal adviser to the Clinton White House, prior to being appointed the White House’s lawyer. Her total court experience is arguing just six cases before the Supreme Court in the past year.
This has prompted a variation of the usual game surrounding Scotus nomination hearings where the talking heads and opposition parties try to discern a judicial mindset, and predict a likely approach to contentious issues such as abortion or state security in the age of terrorism, and the nominee and her supporters try to say as little as possible about anything of any great import beyond swearing bland allegiance to the Constitution and promising to uphold precedent. Analysis parsing Kagan’s published paper trail has proved fairly thin and unsatisfying. So they have turned to a topic with more potential for headlines: given her single status, is she or isn’t she a lesbian?
Cue the earnest coverage of her choice of shoes (sensible), haircut (ditto), suits (boxy), boyfriends (none), children (ditto), college roommates willing to confirm crushes on boys (check) and countervailing softball-playing history (check). Tally that all up. But reports have settled their focus on her support while Harvard law dean of the boycott of military recruitment on campus in protest against the armed forces’ “don’t ask, don’t tell” policy. This boycott was not limited to Harvard: it was widely supported across US law school campuses.
The policy, which prevents openly gay servicemen and — women from joining or serving in the military, was protested by students who boycotted recruitment drives on campus for lawyers who would serve in the judicial wing of the armed forces, for example in the US Navy’s Judicial Advocate General’s Corps or JAG. When the Bush administration threatened to withdraw federal funding unless recruiters were permitted on campuses, their interview slots were duly filled — albeit by activist students who turned the tables on their interviewers questioning them about how the policy could stand and how they could stand the policy. Kagan’s support for the boycott seems to be Exhibit A in the media’s case that she must herself be gay, though closeted.
All of this distracting blather about Kagan’s sexuality rather than her suitability for elevation to her country’s highest court made one relieved to live in South Africa, where the sexual orientation of candidates for judicial appointment has not been the seeming focus of the enquiry into their fitness and propriety for office, although there have been the inevitable whispering campaigns about the private lives of certain candidates. It also made one proud that we have an openly gay man (Edwin Cameron) serving on our highest court and at least two openly gay women (Kathy Satchwell and Anne-Marie de Vos) have served in our high courts.
Of course, one can’t be too smug — both women were subjected to fairly awful questioning at various interviews before the Judicial Service Commission (JSC) over the course of their careers. In 2005, De Vos was questioned about the discomfort other judges might have about her having a “partner” rather than a “husband”. Last year, Satchwell had to defend herself against an attack on her suitability for promotion to the Constitutional Court when she was asked whether “god-fearing” people would accept a lesbian as a judge. But this bias was at least dealt with as, and recognised for the homophobia that it was, in the open and ultimately, with dignity and respect for the sexual orientation of these individuals. Critically, it appeared to play no role in the eventual deliberations of the JSC.
What it also highlights is the sense that we all seem to know that the identity, and identity politics, of a judicial officer matters – and not just in a crude numbers game masquerading as meaningful transformation. The gender, race, class and sexual orientation of a judge will inform their life experience and worldview, and may assist them in adjudicating difficult cases when on the Bench. In fact, the last time the Obama White House nominated someone for the Scotus, Sonia Sotomayor, her personal history and private life became the very reason to appoint her.
The obvious hypocrisy this time around when the same administration issued a terse “that’s private” statement about Kagan bears pointing out. As does the sexism requiring that an accomplished single woman must be labelled: lonely, misfit or lesbian? But we also know that empathy is an important judicial characteristic and that we want judges who can be affected by the personal circumstances and lived experiences of the litigants who come before them, however far removed from their own.
What we cannot seem to be rational and consistent about is why this all matters and how to take account of it without resorting to identity essentialism. We want candidates for judicial office to be more than the sum of their identity and demographics, while insisting that their identity and demographics matter for both adjudicative and transformation purposes. These competing interests can make for strange bedfellows. Perhaps that is the wisdom behind judicial robes — unisex and uniform, symbolically obliterating the personality and preferences of the person who dons them, cloaking them in fidelity only to the constitution and the rule of law. No questions asked.
Michelle Le Roux is a member of the Johannesburg and New York Bars and co-author of Precedent & Possibility: the (ab)use of law in South Africa