The Blog

Questioning Sexual Orientation Is Out of Bounds

By denying Elena Kagan is lesbian instead of denouncing the inquiry, the White House is implicitly stating sexual orientation is a legitimate issue of discussion in the confirmation process.
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Solicitor General Elena Kagan's sexual orientation is the subject of much discussion in blogs and mainstream newspapers. The White House response denied Ms. Kagan is a lesbian. Instead, shouldn't the White House have denounced the speculation and conveyed that such inquiries are improper?

By denying she is lesbian instead of denouncing the inquiry, the White House is implicitly stating sexual orientation is a legitimate issue of discussion in the confirmation process.

On the positive side, raising the issue of Ms. Kagan's sexual orientation may give more support to an effort by Barney Frank, who has a bill with 198 co-sponsors in the House, and Senator Jeff Merkley, who has a similar bill and 45 co-sponsors, to bar employment discrimination by the federal government against people because of their sexual identity. Only 20 states in the Union - New York being one of them - have such legislation. The current debate regarding Ms. Kagan's candidacy demonstrates the imperative of passing such legislation. How many U.S. Senators now considering Ms. Kagan's nomination will vote for such legislation? Write to yours and let's find out. Also, ask your member of Congress.


On May 13th, New York Times reporter Al Baker wrote a column on the data revealed in a 2009 police report describing stop and frisk incidents in New York City. According to the Times, a Supreme Court decision permits police officers "to detain someone briefly based on 'reasonable suspicion,' a threshold lower than the probable cause necessary for a formal arrest." Pursuant to a City Council law, since 2001 the NYPD has provided public reports listing the number of stops on a quarterly basis, and the reasons for those stops.

The Times reported on the analysis done by the Center for Constitutional Rights, the organization which secured the raw data on which the 2009 report was based after instituting a lawsuit:

In examining the stated reasons for the stops...the center found that about 15 percent of the stops last year cited fits a relevant description...but in nearly half the stops, the category called 'furtive movements' was cited. Nearly 30 percent of stops cited a category called 'casing a victim or location;' nearly 19 percent cited a catchall category of 'other.'

The most important statistics to bear in mind are that of the 575,000 stops made in 2009, 490,000 of the stopped were blacks and Latinos, compared with 53,000 whites. According to the Times, blacks and Latinos were "nine times as likely as whites to be stopped by the police." Following the stops, reports The Times, the "arrest rates were virtually the same. Whites were arrested in slightly more than 6 percent of the stops, blacks in slightly fewer than 6 percent. About 1.7 percent of whites who were stopped were found to have a weapon, while 1.1 percent of blacks were found with one."

What did these indignities especially imposed on New York City minority residents produce? 762 guns, compared with a gun buy back program referred to by the Center in the Times article "conducted by the police at several Bronx churches one day in January [which] yielded 1,186 guns." On the other hand, according to The Times, "the stops led to 24,000 arrests and the seizing of 6,000 weapons, other than guns."

The conclusion that I draw from all this is that stop and frisk may help in reducing crime, but it is in need of reform in order to remove the obvious racial bias reflected in statistics. Such bias would be intolerable in any city, but in New York City, which is 35 percent non-Hispanic white, 24 percent black, 28 percent Hispanic and 12 percent Asian, it is especially abhorrent.

I want my readers to know the arguments of those who support stop and frisk in New York City as it is enforced today. One defender of the practice is Heather Mac Donald, contributing editor of City Journal, published by the Manhattan Institute. She defends the disparate racial and ethnic statistics which are part of the police report on the stop and frisk program of 2009. In her May 14 column, she wrote:

Here are the crime data that the Times doesn't want its readers to know: blacks committed 66 percent of all violent crimes in the first half of 2009 (though they were only 55 percent of all stops and only 23 percent of the city's population). Blacks committed 80 percent of all shootings in the first half of 2009. Together, blacks and Hispanics committed 98 percent of all shootings. Blacks committed nearly 70 percent of all robberies. Whites, by contrast, committed 5 percent of all violent crimes in the first half of 2009, though they are 35 percent of the city's population (and were 10 percent of all stops). They committed 1.8 percent of all shootings and less than 5 percent of all robberies. The face of violent crime in New York, in other words, like in every other large American city, is almost exclusively black and brown.

Those statistics are indeed alarming and a legitimate cause for concern. I see them as relevant to how the police should direct their energies and budget towards crime control, including deterrence, apprehension, conviction, punishment and rehabilitation. In my opinion, those horrifying statistics do not provide a defense to the racial disparity in New York City's stop-and-frisk program, because the results of that program in 2009 show that blacks stopped were arrested at a lower rate than whites and found to be carrying proportionately fewer guns. This convinces me that the program, as currently administered, is racially discriminatory.

We have a great police commissioner in Ray Kelly and a superb police force in the NYPD, and instead of engaging in recriminations, all interested persons and organizations should look for a positive and constructive solution to the discriminatory enforcement of stop and frisk. If they cannot find a remedy, then it is likely that the courts will.


Miranda warnings are now the topic of great discussion as a result of U.S. Attorney General Eric Holder's push for the law to be revised to allow more questioning of terror suspects before those warning are given. Holder apparently is concerned that treating terror suspects like anyone else would give them an opportunity to stop talking and cooperating and would require the police to quickly present the suspects to a judge.

I believe not only in cases involving terror charges, but in all criminal cases, the Miranda rules should be abolished or sufficient exemptions added to allow law enforcement and society the benefit of the human reaction to confess. Our judicial system has decided not to take advantage of that human emotion and instead to warn suspects that they have the right to remain silent and to receive free legal representation if they cannot afford it. To sum up, they are told "for heaven's sake, shut up."

Currently, if Miranda warnings are not provided in a timely way, the confession given by the suspect is not useable at the trial, nor is any information obtained as a result of the confession. Sheer folly. I also believe all interrogations of suspects by the police should be videotaped.


Los Angeles' government and some in New York City's Council are urging a boycott against Arizona because of its recently-enacted law enabling cops to stop those they believe to be illegal aliens and ask for identification. Some who disagree with that law -- according to the Pew Research Center survey, 59 percent of Americans support the intent of the Arizona law -- think they should impose their views on the citizens of Arizona by engaging in a boycott of that state, including its products, sports events, and tourist attractions, unless or until it rescinds the law.

I believe that we should rely on lawsuits and education rather than boycotts to reform domestic actions we disagree on. If California and New York City go the way of boycott, shouldn't California be boycotted for having supported Proposition 8, which took away the right of same-sex couples to marry? Forty years ago, New York State voted down the Equal Rights Amendment, which constitutionally would have provided women with all of the rights accorded to men. Should women then throughout the nation have boycotted New York State?