Kagan: Why the questions about her sexuality?

Okay, so “she’s straight,” said Andrew Sullivan in TheAtlantic.com. I’ve taken a lot of heat over the past two weeks for arguing that Supreme Court nominee Elena Kagan should boldly declare whether or not she’s gay. To hide her sexuality, I’ve maintained, would be to accept the premise that homosexuality is something shameful that must be hidden. Now that the White House and friends of Kagan have come forward to vouch that she’s straight, the principle I expressed still holds. If it’s legitimate for President Obama to take gender and ethnic background into account to create what he calls “a more inclusive” court, then “why is sexual orientation out of bounds of even inquiry?” Just as Thurgood Marshall changed the court’s understanding of what it’s like to be black in America, an openly gay justice would undoubtedly shift the court’s perspective on gay marriage and other legal issues critical to the gay community. “Bracketing sexual orientation as somehow different” than other fundamental aspects of human identity is “offensive.”

What’s offensive, said William Saletan in Slate.com, is that we’re discussing Kagan’s sexuality at all. It would be “grotesque” if Supreme Court nominees—and other public servants—were now required to tell inquiring minds who they sleep with. To see where this sort of inquisition leads, consider “one of the most disgusting episodes in the history of Supreme Court nominations”—the 1987 interrogation of nominee Robert Bork about his religious beliefs. Bork was reported to be an agnostic who did not attend church, prompting religious conservatives in the Senate to wonder if he were “a nonbeliever.” Religious belief, or the lack of it, would affect how a justice rules, they argued, so it’s not private. If you accept that principle, where do the questions stop? Is anything private?

Sadly, it’s too late to stop such intrusions, said Julia Baird in Newsweek.com. “Kagan’s love life is on the agenda.” Apparently, for many people, “short hair + smart + single (+ softball) = lesbian”—assumptions that result from a strange form of “facial profiling.” This equation forced old friends to say she dated guys, but just never found the right one. And when a woman over 50 has not found the right one, said Maureen Dowd in The New York Times, she’s no longer considered “single.” She’s either a lesbian, or she’s “unmarried.” The latter category implies that she’s “undesirable, unwanted,” and resigned to “a cloistered, asexual existence.” This should be Kagan’s “hour of triumph”; instead, she is being forced to deny that she’s a lesbian by portraying herself as “lonely.’’ Men at Kagan’s age still have options—“some in their 20s and 30s,” said Ruth Marcus in The Washington Post. “The brutal fact” is that single women over 50 do not. This has nothing to do with Kagan’s suitability for the bench, but it does tell us something about how, despite all the advances of feminism, some things haven’t changed.

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Now that the sexuality question has been answered, said Joan Vennochi in The Boston Globe, maybe we can start focusing on what matters—starting with the fact that Kagan has no known views on many of the most pressing legal issues of our day. Who knows? “Kagan may be secretly pleased to have the focus on her short hair rather than the short paper trail of her legal philosophy. It lets her off the hook on the really tough questions.”