With the nomination of Elena Kagan to replace John Paul Stevens on the Supreme Court, rumors began to fly that she is lesbian. Some will no doubt oppose her confirmation based on those rumors and others will be heartened to support her nomination by those same rumors. Already, it is being asserted that it is an “open secret” at Harvard that she has a female partner. Others claim she has been outed previously.
Well, there’s nothing like sex to grab the headlines in America. (Notice the headline above … and you’re reading this.)
For those talking about Kagan being the first LGBT to be nominated to the high court, guess again. Let’s start with the obvious. President Richard Nixon nominated G. Harold Carswell for the Supreme Court. His nomination was not confirmed. Probably a good thing. It would have been very embarrassing to the Court when, several years later, he was convicted of “unnatural and lascivious advances,” the result of propositioning an undercover police officer in a Florida men’s room.
The other four men suspected of being gay, or bisexual, actually served on the Court. They are Frank Murphy, Benjamin Cardozo, James McReynolds and David Souter. Little is known about McReynolds other than his bachelor status.
Frank Murphy had a lifelong companion and roommate, Edward Kemp. They met in college, then attended law school together, then travelled to Great Britain together, and shared quarters together both before and after Murphy took his seat on the Supreme Court. Kemp claimed to hold the position of Murphy’s personal assistant and political advisor. Interesting jobs those, given that Justices have clerks for personal assistants and, with lifetime tenure, have little need for political advisors. Neither man ever admitted to being gay.
David Souter’s nomination was questioned by social conservative groups because of his bachelor status and suspicions surrounding his sexual orientation. Nothing ever came of the suspicions and he was confirmed.
Benjamin Cardozo, regarded as one of the country’s most intelligent justices, was described by friends as delicate and sensitive. He lived out his life with his sister and never married, saying he could never relegate his sister to second place in his life by marrying. He was presented officially as having chosen a celibate life, but rumors persisted that he was either sexually dysfunctional or gay. He had been personally tutored by Horatio Alger, who, among other things, was accused of engaging in inappropriate relations with young boys.
Frankly, I hope Elena Kagan is lesbian. And, if she is, I hope she comes out and says so either before her confirmation or after she’s on the Court. But, if she is gay, she almost certainly will not be the first LGBT person to have been nominated or to have served.
[Author’s Note: Above is a photo of Justice Benjamin Cardozo.]
Cross posted at Elijah’s Sweete Spot.
Contributor, aka tidbits. Attorney in complex litigation, death penalty defense and constitutional law. Former Nat’l Board Chair: Alzheimer’s Association. Served on multiple political campaigns, including two for U.S. Senator Mark O. Hatfield (R-OR). Contributing author to three legal books and multiple legal publications.