By Taryn Hartman

Legal News

First the Blogosphere was in a rush to break the news that Elena Kagan was going to be President Obama’s second appointment to the Supreme Court in as many years prior to last Monday’s announcement, at which Kagan was so clearly (and so appropriately…in the same sitch, wouldn’t you do the same?!) rocking a fresh haircut and color. Then the online conversation quickly stooped to focus on her personal life and sexuality over her qualifications and fitness for her next stop in a career full of milestones.

USC law professor Mary Dudziak got out in front of the single issue last Monday with a great post at Balkinization emphasizing that being married is in fact not a job requirement, on the U.S. Supreme Court or anywhere else. She brings some interesting facts to the table surrounding many unmarried former justices, including Michigan’s own Frank Murphy, the namesake of Wayne County’s primary courthouse, whom she writes “had many female admirers, and never married, but was engaged late in life.”

Dudziak also examines national trends surrounding the increased number of Americans who live alone, suggesting that Kagan’s singledom is an accurate reflection of the nation’s population, and she also mentions the well-acknowledged dissonance between men and women when it comes to the legal profession.

But the single question quickly unraveled into the sexuality question, and much of the Blogosphere was dominated last week by the is-she-or-isn’t-she-a-lesbian debate that mirrored last summer’s talk about Kagan’s fellow single ladies Sonia Sotomayor and Surgeon General Regina Benjamin during their confirmations. And even if much of it ended up making the I-don’t-care-who-she-sleeps-with-it’s-none-of-my-business-it-doesn’t-impact-what-she’ll-do-on-the-job-blah-blah-blah point, what should be most infuriating is that we even went there to begin with.

Did it ever occur to anyone that the first woman dean of Harvard Law School, first woman Solicitor General and now the likely fourth woman (only four in 240 years?!) Supreme Court justice was just too busy kicking butt and taking names to worry about the menz?

But such titillating discussion never fails to get our equal parts sex-obsessed and sex-repressed culture talking. Why else would the Wall Street Journal run a front-page photo from 17 YEARS AGO of Kagan playing softball? Not to innocuously illustrate that a fun-loving “Court Nominee Comes to the Plate.” Cute headline, sure, but over a photo that’s close to two decades old? Really? But hey! Look what it did to thrust into the national conversation a paper that by mere coincidence just launched a new New York metro section!

Maureen Dowd has devoted two of her New York Times columns within the past week to Kagan, the most recent raising the excellent question, “When does a woman go from being single to unmarried?” Her point is somewhat nullified, though, by the fact that she concludes with, “Why couldn’t she be eager to come to Washington to check out the Obama-era geek-chic bachelors, maybe get set up on a date by Michelle Obama, maybe host some single ladies fiestas with Sonia Sotomayor, maybe even sign up for JDate with a new and improved job status?”

And also by her first Kagan column, “Supremely Girly Girl,” written in the voice of a Joe Biden-penned email and filled with such laugh-inducing comedic gems as, “Just try dragging her out of La Perla! And I’m sure, under those robes, she’ll be rocking some Juicy Couture jeans and Christian Louboutin suede boudoir slides,” and “She’s never been spotted at Home Depot or the Meow Mix bar.”

Sidenote: Is this supposed to be funny? Is this woman and her particular brand of humor sailing way over my head? Is hers a strong representative voice for women in the Paper of Record and syndicated across the country?

But I digress. Beyond the gay-or-straight talk, there’s the discussion of who Kagan most resembles, propagated in part by an Above the Law “contest” that last week pitted Kagan against supposed doppelgangers such as “The Albino from the Princess Bride,” “A Fraggle,” Jon Lovitz, “King of Queens” Kevin James, and Beauty and the Best sidekick Le Fou.

The winner? The Albino! Hooray! And the photo of Kagan used in this comparison is the very same one that made me ask, out loud, while still lying in bed watching the morning news last Monday, “There was honestly no other available photo of her they could have used?”

I don’t remember this kind of fun being poked at the physical appearances of any male nominees, but if it’s happened in the past, please let me know.

I’m usually pretty quick to give ample credit to and heap effusive praise on Above the Law, mainly because I don’t want my name to show up there as their latest target of ridicule.  And I’m not the only one who’s put off by some of their Kagan-related content, although they have come up with one of the better nicknames for her in “Lady Kaga.”

In a great post Wednesday, ATL founder David Lat addressed some of these concerns and explained his site’s Kagan coverage, noting that, “The highbrow fare has included a personal essay by my colleague, Elie Mystal, on the experience of studying under Kagan at Harvard Law School; a thoughtful, historically informed analysis on the required credentials for nominees (fun fact: you don’t need a law degree); and an exegesis of a 1995 law review article Kagan wrote, in which she described Supreme Court confirmation hearings as a ‘vapid and hollow charade.’”

But his best point, and one that we commonly forget despite its pervasive presence, is that the more lowbrow stuff is exactly what we’re asking for.

“To all the readers who condemn, say, the Kagan look-alike contest, or our coverage of the lesbian rumors, ask yourself: If you find this so repugnant, then why are you here?” Lat writes. “Why are you reading Above the Law, a self-described ‘legal tabloid’? You may posture and criticize this type of material, but at the end of the day, you’re reading it (as we can tell from our traffic statistics, which we monitor obsessively). Your actions—clicking on the post, commenting on it, emailing the link to several friends—speak louder than your words.

“A wise person once observed that in a democracy, you get the government that you deserve. The same could be said of the brave new media world: in the internet age, you get the journalism that you deserve.”

You know what? He’s right. The change is going to have to start with us, but given our apparent obsession with devaluing or downplaying the success of others in any way we can, I’m not sure how or when that’s going to happen.