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The Kagan Kerfuffle is More than That

“Elena Kagan, are you a lesbian?”

I can’t imagine that question being asked directly by any of the Senators at her confirmation hearing, but how would she respond if it were? In that context, of course, the only appropriate response would be something like:

“I don’t see how that’s relevant to my qualifications to sit on the Supreme Court.”

But does it matter? Over on my 365gay.com post today, I argue that it does, in a way:

“Bold” isn’t the first word that comes to mind in describing Kagan. Indeed, her stance on DADT – which stemmed as much from enforcing Harvard’s policy against discrimination as anything else – is notable precisely because it appears to be the only time she took a strong position on an important issue of the day….

How can someone have achieved success on this level while letting so little of herself, or her views be known? David Brooks, writing  in the Times, finds Kagan’s ultra-cautious path and “her willingness to suppress so much of her mind for the sake of her career, kind of disturbing.”

So do I. In response to [a questionnaire she completed when under consideration for the Solicitor General job], Kagan stated that she didn’t recall ever discussing whether the Constitution should be read to confer a right to same-sex marriage. Do you believe that? Isn’t it likelier that she didn’t discuss it in a setting where it might come back at her?

This level of caution seems very odd. A person reaches her 50th birthday without coming out of a careful cage – one that may or may include a lesbian sexual orientation. (I have no inside information here, but there’s plenty of speculation flying around; more than usual in these kinds of cases.)

Why not be bolder, sooner? It seems that Kagan – tenured law professor at University of Chicago,  Dean of Harvard Law School, and now Solicitor General of the U.S. would have by now achieved enough to come out, in every sense of that word.

I had this very conversation with a friend last week, and we joked that she might have planned her entire life for the possibility of becoming a Supreme Court Justice. But now our joke isn’t funny: This profile of the nominee shows her wearing a judicial robe, and quoting Justice Felix Frankfurter, in her high school yearbook photo! It also states that at least one classmate recalls Kagan’s stating that becoming a Supreme Court Justice was her goal.

Now what? If she gets through the Kabuki-like nomination process, will she feel liberated enough to make bold, progressive decisions?…

Will she feel comfortable and secure enough to come out, if in fact she is a lesbian?

I have doubts on both counts. Having spent one’s whole life in a carefully crafted, protective bubble, it might be hard to leave its safe casing now. I hope I’m wrong.

In a way, then, I agree with Andrew Sullivan that the public is legitimately interested in a candidate’s emotional life. The law — especially constitutional law — isn’t math, and I, for one, am interested in learning how the candidate sees the world. Someone whose entire life has been guarded, both in terms of emotional and sexual affinity and in the legal context, raises some concern.

So Sullivan has the better of the exchange here. As he notes, when someone is heterosexual, the public part of that orientation is relentlessly on display, in a way so pervasive yet mundane that it becomes wallpaper. (And when it’s no longer boring, sparks fly: See, e.g., the Clarence Thomas hearings.) Yet it “doesn’t matter” when the candidate is gay? Translation: Keep it in the closet.

The back-and-forth between Sullivan Benjamin Sarlin of the Daily Beast did raise another issue, and here I think we might have the start of an interesting, productive and ultimately irresolvable debate about the role and responsibility of the blogger. Is it just to “think out loud,” and not “to report stories,” as Sullivan maintains? I think that’s a false dichotomy. Like it or not, Sullivan is so widely read and cited (he’s prolific, smart, and conveys a clear sense of self) that his thinking out loud, when it presents statements like “we have been told by many that she is gay”, is just more likely to make people think he has some inside information than such a statement would coming from, say, me.  It’s not presented as reporting, but might be taken that way. A short statement like, “I have no inside information” would be a helpful disclaimer in this kind of case, even though it’s kind of implied by the way the sentence is structured. (“We have been told” is different, in an important way, from “I have been told.”

I’m not sure what Kagan should do about this issue (if anything) at this point. Expect more thinking out loud on that issue, soon.