Shortly after Justice John Paul Stevens announced his upcoming retirement from the Supreme Court, Solicitor General Elena Kagan emerged as a leading candidate to fill his seat. The phrase “Team Kagan” started popping up all over the place (as we noted in our Twitter feed). Numerous users of Twitter and Facebook, as well as many bloggers and observers of the Court, proudly proclaimed themselves members of “Team Kagan.”

Over the weekend, Team Kagan may have gained another prominent member: former President Bill Clinton. In an interview with ABC’s “This Week,” Clinton said that he and his wife, Secretary of State Hillary Clinton, are simply too old for SCOTUS. “I’d like to see [President Obama] put someone in there, late 40s, early 50s, on the court and someone with a lot of energy for the job,” Clinton said.

Hmm…. Of the three leading candidates for the Court — Elena Kagan, Judge Diane Wood (7th Cir.), and Judge Merrick Garland (D.C. Cir.) — only one, Kagan, fits the “late forties / early fifties” demographic. Kagan is 49, turning 50 later this month (on April 28). Wood is 59 — although she’s in great health, and looks like a million bucks. Garland is 57.

Then ex-president Clinton took another step towards openly endorsing Kagan. He urged Obama to consider someone from outside the judiciary. Again, of the three leading candidates, Kagan is the only non-judge. (Judges Wood and Garland were appointed to their judicial posts — by President Clinton, as a matter of fact — in 1995 and 1997, respectively.)

Going into this weekend, Solicitor General Kagan was already viewed as the frontrunner for JPS’s seat. We’ve said so here at Above the Law (here and here), and she’s also the nominee predicted by our readers (and by Fantasy SCOTUS players, too). Tom Goldstein, over at SCOTUSblog, has flat-out declared that “[o]n October 4, 2010, Elena Kagan will ask her first question as a Supreme Court justice.”

The apparent support of a former president can only increase Kagan’s lead. But what about the issue of her (real or perceived) sexual orientation?

Well, what about it? With apologies to Emily Bazelon and Dahlia Lithwick, who don’t even want this raised as a topic, we’re not really sure there’s much more to say. After CBS News blogger Ben Domenech claimed that Kagan is a lesbian, the White House denied it. Unless someone has photos or video footage of Kagan engaged in lesbianic activity, that’s probably the end of that. (If you have said photos or video, please email us.)

For the record, we’ve heard from our own sources that Kagan is not gay. For example, a former Clinton Administration official who was involved in vetting her for the D.C. Circuit — she was nominated to that court, but never confirmed — once told us, in no uncertain terms, that Kagan is straight. Elie, who had Kagan — not carnally, but as a civil procedure professor — also has no reason to believe that she’s a lesbian.

Granted, Kagan was nominated to the D.C. Circuit back in 1999, and Elie had her as a professor in 2000. It’s possible that, in the intervening years, Kagan somehow discovered an attraction to the fairer sex. But more recent intelligence doesn’t suggest that either.

According to Marc Ambinder of The Atlantic, sources close to Kagan claim insist she is not a follower of Sappho. Ambinder uses this as a jumping off point for some very interesting observations:

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?

Human beings tend to conflate sexual orientation and diversity within gender. A woman who has short hair, favors pant suits, hasn’t married, and doesn’t seem to be in a relationship must be a lesbian. (It is ironic and disheartening that the first female solicitor general ever isn’t enough of a woman for some people.)

Former Attorney General Janet Reno and current Homeland Security Secretary Janet Napolitano are victims of this confusion. They’re victims, not because being gay labeled bad, falsely or otherwise, is shameful, but because the intention behind the labeling is often nefarious and stereotypical. Gay groups want to appropriate and use these public figures to advance a cause, and conservatives, many of them, consider homosexuality and gender non-conformity to be fundamental character flaws.

What do we take away from all this lesbian talk? With all due respect to Solicitor General Kagan — whom we think is fabulous and brilliant and awesome — we respectfully recommend a makeover before the Senate Judiciary Committee hearings. That s**t is televised, after all.

Solicitor General Kagan, you’re quite pretty. There’s a reason you made our list of law school dean hotties, back when you were dean at Harvard Law School. You have great skin, a dazzling smile, and a girlish glow. You definitely possess assets that merit accentuation. (See photo at right.)

So why play into the right-wing whisper campaigns and innuendo about your sexual orientation? Why not show up to your hearings looking as sexy and feminine as possible? Wouldn’t it be great to see the looks on the senators’ faces as you strut into that hearing room in an electric blue skirt suit, like the one sported by then-Judge Sonia Sotomayor?

Combine a skirt suit in a bold, primary color with a professional make-up job and slightly longer hair — there’s still time to grow it out before the hearings! — and confirmation is all but guaranteed. Channel your inner Sarah Palin, and you’ll go from answering the questions to asking them at One First Street.

We realize it’s (arguably) regrettable that, in 2010, we’re even making this recommendation. But we take the world as it is, not as it should be. A Supreme Court confirmation battle is a political process, and it must be approached as pragmatically as possible. Now is not the time for railing against gender stereotypes. Just get yourself confirmed, and then you can start making rulings and issuing opinions that will advance women’s (and LGBT) equality.

Remember these two words: LIFE TENURE. Once you’re on the Court, Justice Kagan, you can wear whatever you darn well please, underneath your robe.

And, Madam Justice Kagan, you can even be a lesbian if you want to. If you turn into a smoldering “lipstick lesbian” after confirmation to the Court, we suspect that Bill Clinton, for one, would not object.

Bill Clinton On Supreme Court Pick: He And Hillary Don’t Want The Job [Huffington Post / Associated Press]
Sexual Politics and the Supreme Court [The Atlantic]
Don’t Ask, Don’t Tell, Don’t Matter [Slate]
White House complains about CBS News blog post saying that possible Supreme Court nominee is gay [Washington Post]
Team Kagan [Twitter]

Earlier: Law School Dean Hotties: Your Female Nominees


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