Not-So-Subtle Sexism at the Kagan Hearings

It’s true that Supreme Court confirmation hearings can be vacuous and hollow, as  Elena Kagan herself suggested in 1995. In recent decades, they seem little more than an opportunity for partisan posturing; some have suggested we just cancel the whole thing. But while confirmation hearings tell us little about the nominees, they do reflect the biases and political tenor of America. Elena Kagan’s grilling, like that of Sonia Sotomayor’s, was a stark reminder of how embedded sexism is in our political rhetoric.

Immediately after President Obama announced Kagan’s nomination,  comments and accusations were flung about everything from her looks to her marital status, sexual orientation and reproductive choices.  Though Kagan’s sexuality was never brought up by the Judiciary Committee, it was hinted about in the media, and that’s not unusual.

Day One one of the hearings began with a rather surprising tactic by the Republican members of the Judiciary Committee: They attacked Thurgood Marshall, the first African American Justice and the civil rights giant who successfully argued Brown v. Board of Education. Kagan clerked for Marshall, whom Republican Senators Kyl, Hatch and Sessions attempted to paint as an activist judge. Equally as disturbing as the attempt to rewrite Marshall’s contributions was the attempt to paint Kagan’s ideology as completely inseparable from that of her mentor.  “Influence” can be a perniciously sexist framework, as it strips women of the ability to have independently created ideas and limits their contributions to second-rate copies. While the right’s attempt to paint Kagan and Marshall into the same activist corner was rightly perceived by many as racist,  it also hinted around sexist stereotypes which damage the equality of women’s ideas and contributions.   The line of questioning led Kagan to quip, “If you confirm me to this position, you’ll get Justice Kagan. You won’t get Justice Marshall. And that’s an important thing.”

At Day Two of Kagan’s hearings, Sen. Tom Coburn (R-OK) lectured Kagan about how Americans are “losing freedom” and how we were more free “30 years ago.”  Apparently Coburn, in his zeal to stick to Republican talking points, forgot that Kagan was a woman. So, Sen. Amy Klobuchar (D-MN) reminded him that the “free” society that Coburn eulogized was one in which women were underrepresented.  Indeed, Klobuchar laid the smack down and reminded everyone that 30 years ago there were no women on the Supreme Court, no women on the Judiciary Committee and only one woman in the Senate.  I’m going to call foul on the majority of media outlets for not even reporting this moment.  Instead of focusing on Klobuchar’s poignant reminder, most just reported on Klobuchar’s jokily querying Kagan for her perspective on Twilight heartthrobs Edward and Jacob (FYI, Kagan had no opinion).

Sprinkled throughout the hearing were the kinds of sexism that we have resigned ourselves to expect.  Dahlia Lithwick from Slate tweeted about the number of times Kagan was downgraded from her earned title “Solicitor” to that of  “Miss.” Feminists across the twitosphere complained about the numerous times Kagan was interrupted and about the lines of questioning pursued by the right (but feminists, our wariness of the confirmation process for women has been justified with a study!). 

The right-wing media also joined in the anti-feminist undercurrent, attempting to sensationalize Clinton-era documents in which they claim Kagan falsified “medical science” regarding partial-birth abortions.  Heck, minority witnesses like Robert Alt even attacked Lilly Ledbetter for wanting equal pay.

But still, the champions of women’s rights got their say as well.  Marcia Greenberger, President of the National Women’s Law Center, testified about Kagan’s amazing career and the importance  her presence would have for the court:

Kagan will bring to the Supreme Court the commitment to equal justice for ordinary Americans, including the women of this country who often need its protection in ways they never expected.

Above: Kagan in the White House with President Obama and Vice President Biden; in the public domain.


  1. Sumitra Shah says:

    This is what I posted on the PBS website after watching the hearings. Marcia Coyle and Judy Woodruff were the comentators:

    “Earlier during the break, both of you talked about Elena Kagan’s witty comment yesterday that ‘she would have to do her hair more often if the Court proceedings were televised’. You followed it with the observation that a male nominee wouldn’t say this. Of course not! Male nominees’ hair, attire and shoes will not be scrutinized so closely, if ever, don’t you think? Ms. Kagan’s spontaneous light touch was just right.”

  2. Tom Vitale says:

    The right wing congressmen today are all fundamentalist ultra conservatives. they have been using slander and hatred and prejudices to build their power base since the start of the party. And at least since roe v wade, they have been fighting to have a right wind dominated activist court.
    Fundamentalists believe they know truth, have a special IN with GOD, and a mission from God to root out all evil: whomever they define to be “evil” and and “enemy”.
    They are willing to do anything and everything they want to do in order to stop all people who are not just like themselves: right wing fundamentalist ultra conservative radical secessionists.
    They believe they are absolutely right, on the side of truth, justice, and God.
    They do not regard the Constitution, the system of checks and balances and the tradition of separation of church and state. Moreover: they live in misogyny. It starts with hatred of women and goes from there to hatred over races, nationalities and every other form of prejudice/bigotry.
    When they succeeded in impeaching President Clinton over sex, they became extremely empowered. They became more empowered when they got their acitivis judges who both proclaim disdain for activist judges and have made decisions against gun control, against abortion and for giant corporations. Thus they have ruled against “the people”.
    The murders of abortion doctors and the harassment of women over the abortion issue which they created primarily to have something to hold morally over people is totally consistent with fundamentalism and against Freedom.
    They therefore are extremely dangerous.
    Now, with an african-american President, they are going all out to fight everything President Obama does and says. And President Obama is a good man making good legislation. It is bad enough that people expect him to do what they most need be done in this country. But what the right wing are doing is treasonous, blasphemous, sacriligeous. I have neighbors who hate me because I like Obama. I like the neighbors too; why doesnt that count in their minds and hearts? Re-read what I am saying here!! they fight anyone and anything they don’t approve of and they can only “approve of” other right wing fundamentalist radical secessionist Obama-hating misogynistic racist war happy people.

  3. Tom Vitale says:

    fundamentalism continued: One of those neighbors brags he has guns and is “military trained”. The other scowled that “Obama is a white muslim and not a citizen. The birth certificate you saw is bogus.”

  4. constance kosuda says:

    blatant sexism abounds in the "legal profession" – it is astounding – well-known, and completely tolerated –
    also, of course, racism – throughout my legal career as a trial lawyer , judges' chambers were routinely places of ribald sexist, racist remarks – unchecked / filled with laughter / never questioned / completely tolerated by supervising judges / Divisions of Workers Compensation / Chief Justices, et als –
    rampant / continuing / unabridged /
    and of course the one and only study of Sexism in the Courts conducted in NJ featured a front-page article by a Judge named Trump (female) who waxed eloquent about how nicely she was treated by men – jeez, you moron, could it be because you are a Judge? a Trump? and that was the end of that. pathetic / disgusting / very damaging to all of us.


  1. […] This post was mentioned on Twitter by ShelbyKnox. ShelbyKnox said: RT @msmagazine: Not-So-Subtle Sexism at the Kagan Hearings #fem2 […]

  2. […] July 7, 2010 by heatheraurelia13 Women judicial candidates are being questioned about their sex lives. It’s assumed that Kagan is gay. […]

  3. […] 9 Jul Women judicial candidates are being questioned about their sex lives. It’s assumed that Kagan is gay. […]

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