Though an unnamed Obama official said that Elena Kagan is not a lesbian a month ago, questions about the Supreme Court nominee's sexuality have resurfaced — on both the right and the left. Some conservative religious groups and gay bloggers are demanding that Kagan herself address the question head-on. It's relevant to her nomination, says Atlantic blogger Andrew Sullivan, who argues that Obama's "don't ask, don't tell" approach just perpetuates the need for gay high-officials to closet themselves. Is Kagan's sexuality a pertinent issue? (Watch a Fox report about Elena Kagan's mysterious past)
Of course, it's relevant: "It's bizarre to argue that a Justice's sexual orientation will not in some way affect his or her judgment of the issue," says Andrew Sullivan in The Atlantic. "It's especially true with respect to Obama. He has, after all, told us that one of his criteria for a Supreme Court Justice is knowing what it feels like to be on the wrong side of legal discrimination."
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Question her policies, not her preferences: I get why the "far right" wants this unfounded lesbian "whisper campaign," says Richard Kim in The Nation, but it's "naive" and bizarre" for gay-rights advocates like Sullivan to make an issue of her sexuality. Who she sleeps with, "if she sleeps with anyone at all," is irrelevant and — unlike her mysterious legal opinions — none of our business.
Gay is a deal-breaker: "It's time we got over the myth that what a public servant does in his private life is of no consequence," says Bryan Fischer at the American Family Association's blog. Lesbians, like other "sexually abnormal" people, are morally unfit to sit on the Supreme Court. The media needs to ask her, point-blank, if she sleeps with other women.
"Is she or isn't she? Let's ask her"
Conservatives shouldn't engage in identity politics: "By Obama's standards, Kagan's identity should be fair game," says Allahpundit at Hot Air, since he apparently thinks "identity" is key to judicial philosophy. But do conservatives really want to go there? If a Justice Kagan hears a gay marriage case, her "liberalism," not "possible homosexuality," will guide her.
"Will Kagan's orientation be an issue?"
Too bad she's not gay: I wish that Obama had nominated an openly lesbian woman, not a sexual "cipher" like Kagan, says Jack Shafer in Slate. Until we put an "uncloseted" gay or lesbian nominee "through the meat grinder of Senate confirmation," identity politics will clog the process and older, unmarried nominees — Kagan, David Souter, Harriet Miers — will keep getting the gay question.