Elena Kagan’s sexuality may actually become the central focus of her nomination fight. I have
joked about this before, as I joked about
Sonia Sotomayor’s status, assuming this would be an issue happily tittered about by the sexual cognoscenti as well as by the virulent right.
But it seems about to go wide. You can feel it. We are just on the verge of articulating our right to know somebody’s sexual point of view.
This is partly because, having not been a judge, she does not have a career history of written opinions, which leaves her opponents, who have perfected the art of opinion slicing and dicing and magnification, a bit flummoxed.
What can they say about her?
This is only a somewhat less happy condition for the left-wing. There’s an awfully go-along-to-get-along aspect of Elena Kagan’s extremely climb-the-ladder bureaucratic career that can easily be read as describing somebody who might not be the implacable foe of the liberals' implacable foes. That’s dispiriting.
Except if she’s gay.
For the left, her being gay would be good news, confirming her progressive sensibility. While for the right, being gay signifies all the rad-lib expansive-interpretation issues that would surely be spelled out by her judicial opinions, if she had any.
(AP Photo)
Clearly, you hardly need judicial opinions if you know someone’s sexual secrets.
And then, well, why not come clean? It is, at this point in time, rather more peculiar that someone might conceal rather than that they would reveal (and nonchalantly, at that).
True, this seems to apply more to women than to men (though a single man—like Justice Souter living with his mother—would now, I’m sure, also face inquiring minds). And, no doubt, being openly gay might have made it harder for the president to choose her (though we assume the president knows which side she’s on). But come on.
Andrew Sullivan, representing not just a gay bias but, broadly, the liberal-humanist point of view,
is succinct (as well as doctrinaire): “The way to counter prejudice is through truth—not avoidance. For the right to oppose Kagan merely because she is gay—if she is—would be one more step toward their self-destruction. By staying mum, the Obamites may be playing yet another rope-a-dope. I just cannot see how in 2010, ambiguity is an option.” (Though I don’t know what the answer is if she herself is equivocal.)
This is, too, another odd aspect of the way we pick Supreme Court justices—instead of picking men and women who have been involved in public life, we now favor unknown or back-office Joes (a solicitor general, which Kagan is, being pure executive branch functionary). We really do have the right to know something about these people—and we really know nothing about Elena Kagan.
More of Newser founder Michael Wolff's articles and commentary can be found at VanityFair.com, where he writes a regular column. He can be emailed at michael@newser.com. You can also follow him on Twitter: @MichaelWolffNYC.
