CBS Deletes Blog After White House Denounces Column Alleging Kagan Is a Lesbian

There is a firestorm of controversy this morning over a piece that ran on the CBS blog by Ben Domenech, a former Bush administration aide and Republican Senate staffer. In his blog, Domenech alleged that Solicitor General (and possible Supreme Court nominee) Elena Kagan is a lesbian. The White House went ballistic and called the story false. CBS stood by the blogger and then issued an apology, saying that it was based on pure speculation.

In his online column Domenech said that Kagan’s selection would please Obama’s base as the “first openly gay justice.”

Anita Dunn, a former White House communications director who is working with the administration on the high court vacancy, attacked Domenech as someone “with a history of plagiarism” who was “applying old stereotypes to single women with successful careers.”

Domenech has a short lived stint (three days) as a Washington Post blogger when he quit after allegations of plagiarism.

After the White House called the story false, Domenech added an update to the post: “I have to correct my text here to say that Kagan is apparently still closeted — odd, because her female partner is rather well known in Harvard circles.”

CBS finally withdraw the column after receiving an email from Domenech. Dan Farber, editor in chief of, wrote that “after looking at the facts we determined that it was nothing but pure and irresponsible speculation on the blogger’s part.”

Domenech added his own apology: “I offer my sincere apologies to Ms. Kagan if she is offended at all by my repetition of a Harvard rumor in a speculative blog post.”

When I teach defamation, we often discuss allegations that someone is gay under the common law. It is an example of part of the evolving social standards of what constitutes a per se category of defamation. At one time, it was considered such a category, but, as society has increasingly accepted homosexuality (and after criminal laws on homosexuality were struck down after Lawrence v. Texas), that is changing. Certainly an Obama official is unlikely to claim that being gay is defamatory — even though this blog would likely meet the test under New York Times v. Sullivan and the actual malice test (requiring knowing falsity or reckless disregard).

Domenach is the co-founder of the RedState blog and writes for Human Events, and other conservative publications.

For the full story, click here.

58 thoughts on “CBS Deletes Blog After White House Denounces Column Alleging Kagan Is a Lesbian”

  1. Former Federal LEO,

    I apologize for the confusion. Only the first paragraph of my comment was my own opinion. The additional quoted portion was from Chapter IV “Power of Defense” from the book I recommended.

  2. John A. wrote:

    “The power of the President to wage a defensive war without a formal declaration and without specific authorization by Congress is thus, according to all authority, clearly granted, if not in so many words, at least by implication and the inherent purpose of the Constitution.”

    I am steadfastly opposed to the authorization of such broad powers granted to one individual in today’s world, especially after living through the abuses of G.W. Bush (I am an old, registered Republican) and now having viewed Mr. Obama’s untrustworthy character (I voted for him).

    Regardless, thank you for your well-reasoned, informative, and interesting reply.

  3. What does it matter? Is she qualified or not? I would say no but that would be based on my opinion of her basic philosophy not who she shares a bed with.

    Seems simple enough to me. Conservatives better have a better argument than she likes women better than men. That is not even in the ballpark of the realm of ideas.

  4. Amen, Amen, Amen I say unto thee….

    Did not some doctor many years ago try and change the color of peoples eyes’? I may be mistaken but Mengele comes to mind. so, if this is read in Germany am I guilty of being subversive. I did not see it personally, nor have I seen an affidavit to the fact. I have just read about it and accept it as true.

  5. My earlier point was that Ms. Kagan’s sexual orientation (and I have no idea what it is) may be fodder for those who wish to argue that homosexual judges are more likely to favor the positions of litigants who have been victims of discrimination or oppression. After all, we can expect that during confirmation proceedings Senate Republicans will continue to promote the myth of objectivity in the process of judging.

  6. My belief is that there is an infinite range of possible sexual identification lying between heterosexuality and homosexuality. We simply have not put all of the scientific pieces together in the puzzle as yet. Therefore, whether they like it or not, people ultimately will have to accept as fact that one does not “choose” one’s sexual orientation any more than one chooses the color of one’s eyes. Those who will continue to resist the truth due to contrary religious beliefs will be their generation’s counterparts to today’s creationists.

  7. Mike A.,

    I think Elaine m., is playing the devils advocate. She threw you a one lined boner.

  8. Mike A.,

    I can’t believe that someone is so stupid to think that a persons sexual orientation would somehow make them a deviant. I guess because I don’t think that it does that I am some sicko deviant for accepting them as a person. I must be one of them.

    I am socially liberal and fiscally conservative. I will say I don’t care what you do with your sheep (Child Abuse, Rape and Murder excepted) don’t expect me to pay for your counseling. If you like horses instead of women, go for a ride, that is your business.

    I think you get the point. I remember years ago a big time Houston developer was on 60 minutes. He was a drag queen when not designing some major piece of Real Estate. He flamed, he was rich and Republican. Go figure, someones life choices. When the Real Estate market was bottoming out in the 80’s in Houston, his stuff was still rented out at top dollar, while others flat lined or went broke.

  9. I admit I know little of Ms Kagan. I have heard that of the original three names put forward (all women, I believe) right after Justice Stevens’ retirement annuncement, Ms Kagan is considered the most moderate or the most conservative or simply the most palatable to Republicans of the three. That makes her my third choice.

  10. Mike A.–

    “So it’s time to lay the real issue on the table. Do lesbians possess more empathy than heterosexual women?”

    I’d have to ask: More empathy for what?

  11. In fairness to wobe, I believe that he was voicing opposition to lesbian judges because he was reluctant to express his true concern for fear of being ridiculed. So it’s time to lay the real issue on the table. Do lesbians possess more empathy than heterosexual women?

  12. Former Federal LEO,

    That particular testimony is one of the reasons I support her. I think it comes down to a question of what constitutes an action in defense of the nation. If the Executive has overstepped his authority, a constitutional check in the form of funding is within the power of Congress. If that is not effective, impeachment is an option. We have had a President from each of major political parties take the same action. I think the opinion of the majority is that waiting until the invader is on our doorstep would render us unable to facilitate a proper defense.

    You should read “War powers of the Executive in the United States” by Clarence Arthur Berdahl (1921)

    “The action of the Convention of 1787 is significant in this connection. The Committee on Detail had reported a clause giving to Congress the power “to make war”. During the discussion over this proposition, it was suggested that the wording of the clause gave Congress practically unlimited control over all the operations of war. Hence Madison and Gerry moved to strike out the word “make” and insert “declare,” with the avowed purpose of leaving to the Executive the power to repel sudden attacks. The suggested change in language was adopted with little opposition, and there would here seem to be some constitutional sanction for the power of the President to wage defensive wars without direct authorization from Congress.

    That power of the President is now at least a generally recognized and well established principle of American constitutional law, the validity of which was vigorously asserted in 1907 by our delegates at the Hague Conference. When the proposal was made for an article requiring that hostilities should not begin without a previous warning, in the form of a declaration of war or of an ultimatum accompanied by a conditional declaration of war, the American delegation expressed its entire sympathy with the purport of the article. It called attention, however, to the fact that Congress under the Constitution had exclusive power to declare war, and that the delegation could enter into no agreement to modify that power in any way. The statement of the delegation then went on to say: “While this is true as to aggressive military operations, it is proper to say, however, that it has been the unbroken practice of the Government of the United States for more than a century to recognize in the President, as the Commander-in-Chief of the constitutional land and naval forces, full power to defend the territory of the United States from invasion, and to exercise at all times and in all places the right of national self-defense.” The delegation announced its willingness to support a proposition favoring a formal declaration of intent to engage in hostilities, providing it were non-mandatory in character.

    The power of the President to wage a defensive war without a formal declaration and without specific authorization by Congress is thus, according to all authority, clearly granted, if not in so many words, at least by implication and the inherent purpose of the Constitution. The questions still remain as to what constitutes a defensive war, and to what extent the President may exercise these powers of defense. They are best answered by some references to history.

    President Washington had appointed General Wayne to succeed St. Clair in command of the western department, and in the spring of 1794 Wayne was ready to move against the Indians. Meanwhile, the British had established a fort at the rapids of the Miami, twenty miles within American territory, near which the Indians took their stand. The action of the British was, of course, entirely unjustified, and technically constituted an invasion of American territory; but it is not clear that any aggressive act of war was intended. Washington recognized that an attempt to dislodge them would probably bring on a conflict, which he was especially anxious to avoid. He seemed, however, to have no doubts as to his power in that regard, for, after weighing carefully the expediency of such action, and without consulting Congress, the following instructions were issued to Wayne by General Knox, the Secretary of War: “If, therefore, in the course of your operations against the Indian enemy, it should become necessary to dislodge the party at the rapids of the Miami, you are hereby authorized, in the name of the President of the United States, to do it.” Fortunately, Wayne was able to defeat the Indians without becoming officially involved with the British, and a conflict was for the time being averted.

    The question of the extent of the President’s powers in the case of a war begun by another nation was more clearly raised in Jefferson’s administration, with regard to Tripoli. Tripoli had declared war on the United States because of the latter’s failure to comply with demands which Jefferson said were “unfounded either in right or in compact.” Jefferson apparently had no doubt of his power to take certain defensive measures without special authority from Congress, for he immediately dispatched a small squadron of frigates into the Mediterranean, with orders to protect our commerce against attack. A conflict ensued, as a result of which one of the Tripolitan cruisers was captured together with what remained of her crew. But further than to fight in the strictest defense, Jefferson felt that he had no constitutional authority, and so, as he explained in his message to Congress, “Unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense, the vessel, being disabled from committing further hostilities, was liberated with its crew. The Legislature will doubtless consider whether, by authorizing measures of offense also, they will place our force on an equal footing with that of its adversaries. I communicate all material information on this subject, that in the exercise of this important function confided by the Constitution to the Legislature exclusively their judgment may form itself on a knowledge and consideration of every circumstance of weight.”

  13. maverratick,

    Man, you have let this be open for abuse. I think for certain that, whatever sexual orientation a person maintains would not affect a ruling/decision that had to be made based upon the law of the land.

    One of the most flaming males that I have ever met, he was a nice guy was rich and republican. He was flaming, he eventually got appointed to the bench. So what ever decisions he made, they were based upon the prevailing laws. Not a ideology of what someone would want.

  14. I’m confused. When judges are lesbians what sort of effect does it have on their rulings?

  15. John A.

    That video was actually going to be my next post and it illustrates one of the main reasons I oppose Ms. Kagan.

  16. Mespo,

    Don’t you get it, Wobe’s just showing they’re not a bigot. I bet Wobe also has good friends who are gay.

    Remember, if you say something mildly complimentary it means that any vile and hate filled rhetoric that follows it must be true and not fueled by ignorance and prejudice.

  17. I do not want Ms. Kagan as the next U.S. Supreme Court justice for many reasons, including a few that are not founded on her legal expertise (my preference is Diane Wood). However, I just found this today from Constitutional Attorney Glenn Greenwald, who is one of the best legal minds around, from my non-lawyer’s perspective.


    The case against Elena Kagan
    By Glenn Greenwald

    “There will be more than enough Republicans joining with the vast majority of Democrats to confirm her; no proposal ever loses in Washington for being insufficiently progressive (when is the last time such a thing happened?). If a Kagan nomination is to be stopped, it can only happen before her nomination is announced by Obama, not after.”

    Kagan’s lack of a record

    “One of the difficulties in assessing Kagan’s judicial philosophy and view of the Constitution is that direct evidence is extremely sparse. That’s not only because she’s never been a judge, but also because (a) her academic career is surprisingly and disturbingly devoid of writings or speeches on most key legal and Constitutional controversies, and (b) she has spent the last year as Obama’s Solicitor General, where (like any lawyer) she was obligated to defend the administration’s policies regardless of whether she agreed with them. As Goldstein wrote at SCOTUSblog: “it seems entirely possible that Elena Kagan does not really have a fixed and uniform view of how to judge and to interpret the Constitution.”

    End Quote

Comments are closed.