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The Silly Season

A Commentary By Susan Estrich

Friday, May 14, 2010

I'd like to believe it's the arrival of spring or maybe just the general decline in civility and common sense that seems to always be in the air in Washington. But it's hard to avoid the conclusion that the reaction to the nomination of Elena Kagan to the U.S. Supreme Court has been a study in the sex discrimination that she has spent her career beating back.

Enough with the pictures, already. What difference does it make if she is photogenic? Is Anthony Kennedy photogenic? Does Samuel Alito have style?

Enough with the innuendo and the denials of the hints about her sexuality -- the suggestion and then denial that her stance with a bat and ball proves something other than that she likes to hit long and hard.

David Souter lived with his mother. Hello. He was a fine justice. Did we test him on the dance floor or look for pictures of him going to the opera? Who knows, and who cares?

It's absurd, and it's insulting.

It's desperate, and it's hypocritical.

Politics is full of closeted individuals, including Republicans who vote consistently against equal rights for people who share their sexual orientation, claiming that they're serving the will of their constituents, not to mention protecting their seats. Only this year, a prominent Republican California state senator was forced to "come out" after years of voting against equal rights when he was stopped for DUI after spending the evening in a gay bar.

I wish we lived in a world in which public officials felt free to sleep with whomever they wanted without fear of being judged by the media or their constituents on that basis.

But campaigns of innuendo are beneath the dignity of us all.

I don't care about Elena Kagan's private life. That's why it's called private. No one has suggested that she has ever done anything in her life that could compromise her fitness to sit on the court, raise questions about her judgment or make her vulnerable to blackmail from enemies foreign or domestic.

Indeed, she's been criticized for living too careful a life. But if she hadn't, imagine what they -- whoever "they" are -- would be saying about her.

Before my conservative friends jump all over me, let me be clear: I'm not making a partisan point here. Both sides, or at least both extremes, are perfectly capable of using whatever mud they can find or manufacture to defeat someone they fear will vote against them. The reason conservatives are throwing the mud this time is because they're convinced that even if Kagan isn't quite as liberal as some on my side would hope, she's not as conservative as they would prefer.

Of course she isn't. Barack Obama won the election. He is entitled to pick judges and justices who agree with him -- and with the voters who put him in office. If folks don't like that, vote for someone else next time. But don't try to pillory a smart, decent and honorable woman who will be serving on this nation's high court for, God willing, many decades to come.

Ultimately, that's the end game. The mud being tossed at Kagan will not cost her confirmation. I have no doubt that this smart and, yes, very careful woman will take her place on the court. The questions are how much dirt will she have to clean off herself once she does, how much will stick however unfairly, and what message does all of this send to decent people who would like to serve their country but lack the thick skin and the perfect past to face this kind of assault.

In Kagan's case, it smacks of sexism. But men face it, too. Frankly, either way, it stinks.

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