Elena Kagan Wins Your Supreme Court Vacancy Office Pool

Here's hoping you didn't have your money on Diane Wood, Merrick Garland, or Cyndi Lauper last night, as all three came up losers. In the case of Lauper, she was booted off Celebrity Apprentice. In the case of Wood and Garland, they lost the nomination for the vacancy on the U.S. Supreme Court created by the retirement of Justice John Paul Stevens. In their stead, Elena Kagan, the current U.S. Solicitor General and the former Dean of Harvard Law School, snagged the nomination to be the 112th Justice on the nation's highest court.

(Why mix Cyndi Lauper into the U.S. Supreme Court fold? Because it would be damn funny to see a remake of her Girls Just Wanna Have Fun video with Justice Antonin Scalia playing the role of Captain Lou Albano.)

Yes, the big winner in the months-long debate over who would replace Justice Stevens is Kagan, a somewhat non-surprising pick but one who will make a splash of history with her nomination. Why? Because she becomes only the fourth woman to be nominated for the Court (not counting President George W. Bush's disastrous Harriet Miers pick), and she becomes the first non-Judge to be nominated for the court since the early 1970s.

In the realm of gay rights, advocates seemed to welcome the pick of Kagan, who has consistently preached equality since her days as Dean of Harvard Law. The Human Rights Campaign issued a statement shortly after her nomination saying that they "are confident that Elena Kagan has a demonstrated understanding and commitment to protecting the liberty and equality of all Americans, including LGBT Americans."

As news of her nomination continues to make the rounds on blogs and major media outlets today, there are a handful of specific things noteworthy to gay rights advocates. Here are four items worth exploring, and worth tucking into the back of your mind as the days and weeks before Kagan's confirmation hearing unfold.

1. This is a woman who wants to see the end of "Don't Ask, Don't Tell."

There will be much more to say on Elena Kagan's role in trying to end "Don't Ask, Don't Tell," but as a quick 101, Kagan was part of a cadre of academics during her tenure at Harvard Law School who resisted what is known as the Solomon Amendment, a U.S. law that forces American colleges and universities to allow military recruiters on campus, lest these colleges and universities lose out on federal grants. Kagan didn't fight the Solomon Amendment because she was anti-military; rather, she fought the Solomon Amendment because she thought that the U.S. military's discriminatory "Don't Ask, Don't Tell" policy had no place on a college campus. It's probably the most controversial position Kagan ever took, although when you unpack this story, there's really not all that much controversy there. Here is a woman who does not like the fact that the U.S. military discriminates against gay, lesbian and bisexual troops. While Dean of Harvard Law School, she tried to take a stand against that discrimination while still expressing a huge amount of respect for the U.S. military. Case closed, no controversy.

2. Do you think she's .... you know .... ?

This morning's coverage will focus exclusively on who Elena Kagan is, her background, why her nomination is historic, and what her politics might look like. But tomorrow's coverage will almost surely start to speculate on her sexual orientation, since the issue has come up time and time again. The White House even issued a statement earlier in their vetting process denying a CBS News blog post that said Kagan was a lesbian. What's the truth? Who the hell knows, and Kagan isn't likely to end the speculation any time soon. Why is this important? Well, it becomes important in part because groups like Focus on the Family have said that they'll fight tooth and nail to prevent an LGBT judge on the U.S. Supreme Court. Will they try to manipulate this nomination and the rumors behind Kagan's sexual orientation to score some political points? Don't be surprised.

3. "There is no federal constitutional right to same-sex marriage."

That's actually a direct quote from Elena Kagan, from testimony she gave when she appeared before the U.S. Senate to be confirmed as President Obama's Solicitor General. She was asked by Texas Sen. John Cornyn whether she believed there was a federal constitutional right to same-sex marriage, and this was her answer. Is there news here? Maybe, maybe not. More than likely, there's some politics behind this statement. Meaning that while I fully support marriage equality, if some relative of mine from the Czech Republic were to call me up and say, "Is there a right to same-sex marriage in Florida?", I would say, "No, there is no right to same-sex marriage in Florida," since gay marriage is illegal there. It's likely a legal statement of fact, rather than a political position of Kagan. (The National Review seems to believe this, too.)

4. Conflicts, conflicts and more conflicts.

One thing that's really interesting to note is that if Kagan gets through the confirmation process, and becomes the next U.S. Supreme Court Justice, she might spend her first year (or more) on the court ducking out of cases. Why? Well, as Supreme Court historian David Garrow told the New York Times, Kagan's current position as U.S. Solicitor General means that she's fully enmeshed in current cases (and upcoming cases) before the court. Kagan will know their arguments, and may have even helped developed the legal strategy behind them. For her to then sit on a bench and hear these cases would be a huge conflict of interest. Could that have an impact on litigation pertaining to gay rights?

As the coverage of Elena Kagan's nomination picks up steam today and over the coming days and weeks, it'll be interesting to see how these four issues play out. One thing that's clear: if Kagan becomes the 112th Justice on the U.S. Supreme Court, she could become one of the most influential judges in history. Why? Because at only 50 years old, she could sit on the court for the next four decades, if she lasts as long as Justice John Paul Stevens, the man she's replacing.

Photo credit: The White House