Kagan: Don’t ask, don’t tell

Supreme Court Nominee Elena Kagan Continues Meeting With Senators

Talk about don’t ask, don’t tell.

Pretty much the moment Elena Kagan was nominated by President Obama to fill a vacancy on the Supreme Court, the questions started swirling. Few online seemed all that concerned with her politics or her understanding of constitutional law. “Elena Kagan husband” became a major Google trend, and it seemed a lot of people just wanted to know why Kagan, at the age of 50, was still single.

Could it be that Kagan would be not only the high court’s fourth female member but it’s first lesbian? As the AP said yesterday, in a lede that was most unkind to Jenny Finch et al.:

She plays softball. Huge hint, right?

She’s 50, single and has a short haircut. Yup, definitely a lesbian.

The real question, though, is whether it matters. If it doesn’t, why do we care. And if it does, why are media outlets doing so much beating around the bush?

More from the AP, in a story that goes on to recount other political gay rumors:

It’s a sign that, in a nation where gayness is as mainstream as ever, sexual orientation is still a delicate topic for anyone in America, across the spectrum of beliefs and politics.

“Even the leadership of the Democratic party is still uncomfortable handling the issue,” says Kenneth Sherrill, a political scientist at New York’s Hunter College who specializes in the politics of gay and lesbian rights.

“They don’t know how to handle the question with a ‘So what if she is?’”

And should we even be asking, anyway?

That last question is a bit shocking. Journalists ask inappropriate questions all the time — in fact, it’s one of the best workplace benefits. Rarely do journalists filter these questions based on whether or not they are even relevant, let alone appropriate.

“In a free society in the 21st century, it is not illegitimate to ask,” wrote Andrew Sullivan, a gay blogger for The Atlantic. “And it is cowardly not to tell.

Sullivan has been beating this drum awfully hard. A column he wrote the Times of London, demanded in the headline: “Answer the lesbian question, Ms Legal Eagle.” And Jim Rainey, who I was a bit hard on last week, reminded us that similar rumors swirled about David Souter when he was nominated to the court in the ’80s.

It’s been two decades since the mainstream media gave Souter a relatively muted once-over, airing and then rejecting rumors that the New Hampshire judge was gay. Over the last week, Kagan has been living the full-volume sequel as the Internet, cable TV and tabloids insist she is either a lesbian or an inexplicably single 50-year-old, which to some seems to be the same thing.

Distinctly missing from the recent Kagan baiting — filled with patter about her short hair, tendency toward plaids and apparent affinity for (Great Sappho’s Ghost!) softball — has been any actual evidence that she is a lesbian and, more important, any good reason to think that her sexual orientation is crucial to the kind of justice she would be.

Most newspapers, wire services and television networks somehow have resisted the temptation (yes, with the exception of media criticism like this) of joining in this feeding frenzy. Big mainstream news organizations simply don’t see news here. They have taken a nearly unanimous pass on the story so far.

In exercising something called news judgment — so passe to bloggers and others who only nominally occupy the same profession — the traditional media make some calculations many of the newcomers don’t. They try to decide not just what’s rumored, but what’s true; not just what’s interesting, but what’s important; not just what the audience wants, but what it needs.

I like Rainey’s argument. It’s sober media criticism. But I have to disagree with him.

This is a story — and not just a story about how it’s not a story, or a story about how lesser journalists are rumormongering. It’s a story because it is very, very, very likely that the Supreme Court will soon hear challenges to laws like California’s Prop. 8, and will most certainly hear many gay rights cases over the time Kagan, who could easily serve 30 to 40 years on the court, sits on it.

Regardless of whether you think a gay or lesbian perspective on the bench would be a good thing or a bad thing or a nothing — after all, most of the landmark decisions giving equal rights to African Americans were issued before the court got its first black justice — it is something that major media outlets should be asking about.

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  • http://www.magdalenesegg.blogspot.com Rev. Michael Church

    As a non-journalist, I often feel at a loss trying to grasp what must be obvious bits of logic for you professionals. It would seem to me that other personal attributes will matter far more than sexual preference in a potential justice’s ability to serve effectively on the Supreme Court, if only because so many more federal cases deal with money than with sex.

    The questions I’d like to hear asked and answered in these situations are: Who has paid the candidate thus far? In what industries and companies does the candidate have a stake? Even “what business leaders and lobbyists belong to the candidate’s golf/tennis/softball club”? Does a candidate, like Kagan, have ties to Goldman, Sachs — or, like Roberts, have the peculiar distinction of representing the states in court against Microsoft, even when he owned substantial stock in the company?

    Obviously, there are religion-beat “ghosts” in stories about money, just as in stories about sex. And federal judges decide many more cases about money than sex. So isn’t that where the stories are?

    Unless, of course, what you’re really trying to tell us is where the stories *that will sell papers* are. And that’s a different question.

  • Martha

    Oh, good crikey. Please tell me there is a better reason for “She must be a lesbian” than “She’s fifty and single.”

    A couple of birthdays will see me fifty and still single, and I’m not a lesbian. Just never interested in getting married.

    Are we still at the stage where if you’re not hanging off a man’s arm, there must be something wrong with you?

    (End rant).

  • Dave

    It’s a story because it is very, very, very likely that the Supreme Court will soon hear challenges to laws like California’s Prop. 8, and will most certainly hear many gay rights cases over the time Kagan, who could easily serve 30 to 40 years on the court, sits on it.

    The Supreme Court hears all sorts of cases that may affect categories of people who are represented on the bench. That’s a constant; it’s not news. Gayness is mainstream enough to be part of that background. It’s a yawn.

  • astorian

    The strangest angle to this story is, it’s NOT the Right (religious or secular) that’s making a big deal of Ms. Kagan’s sexuality. None of the conservative columnists or bloggers I read has even raised the issue. I’d say that half the conservative commentators I know of are attacking Ms. Kagan for her liberalism and seeming socialist sympathies,while the other half are saying, “She’s not our ideal, but she’s a nice lady and may be as good a selection as we could hope for from Obama.”

    It’s the Left that’s insisting Kagan must stand up publicly and proudly to declare herself a lesbian- whether she is one or not.

  • Bryan

    She would be the fourth female justice, not the third. O’Conner, Ginsburg, Sotomayer, and then Kagan.

  • http://ingles.homeunix.net/ Ray Ingles

    I could give a rip about her sexual preferences, if any, modulo consenting adults and all. But avoiding questions on this matter is just a symptom of a larger problem of avoiding questions in general. This despite how she objected to other candidates avoiding questions, even substantive ones.

    Journalistically, I figure reporters should be more focused on the general issue rather than this particular instance, however titillating they may judge it to be.

  • Jerry

    I wish the media could get over the tendency to engage in right-wing identity politics and political correctness.

    And, beyond that, the assumption is that no one can set aside their background to judge fairly, that identity always overrules the law.

    So maybe I need to automatically oppose any Catholic in any political or judicial situation because the Pope is against abortion. Or I need to oppose any evangelical Christian because they must automatically be against things I’m in favor of. And, of course, my opposition becomes automatic if a future Republican president dares to support a Catholic or evangelical for the Court.

    After all, isn’t everyone an automatic and lock-step supporter of whatever religious and ethnic groups they’re a member of?


    I hope this reductio ad absurdum points out that we should judge a person on their own character as Martin Luther King said

    I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.

    So I very strongly disagree that the media should be involved in this witch hunt. The media should be exploring the content of her character and the quality of her judgments.

  • http://www.tmatt.net tmatt


    Andrew Sullivan is right-wing on social issues?

    Also, you WOULD oppose — I assume — any Supreme Court justice who openly support the overturning of America’s current regime of laws on abortion, correct? Isn’t that what the whole Bork era has been about?

  • http://samsonblinded.org/news/ lady @ israel

    I don’t think that whether she’s a lesbian or not is of any importance for the country. What really matters is her ability to cope successfully with her duties. Besides, why wouldn’t anyone look at it from a different angle? What if there was no one who fell in love with her? what if she’s unhappy? And these rumours make her life unbearable???

  • Stephen A.

    Is her sexuality a RELIGIOUS issue? More importantly for this blog, is it being covered as one?

    I agree with astorian, above (#4). Apparently, it’s the secular Left that is insisting she “come out” as a lesbian, even if she’s not.

  • Brad A. Greenberg

    Gayness is mainstream enough to be part of that background. It’s a yawn.

    I agree wholeheartedly with you, Dave. But, as a journalist, I know that we often ask question that are even less tangentially relevant. And, that being the case, I don’t see how this is an inappropriate question, regardless of whether it would have any affect on how Kagan interprets and applies the Constitution.

    And good catch, Bryan.

  • will47

    I think the Right’s been giving this some play, too. The first rumors were published by a conservative blogger on cbsnews.com. And the NY Post (if that counts) is big on the story.

  • Brad A. Greenberg

    Stephen A.: I believe Andrew Sullivan is gay and Catholic.

  • Stephen A.

    Brad: Is the religion of the person raising the issue an issue? If so, why? His gayness – and his desire to ‘out’ someone – seems far more relevant than his Catholicism.

  • Dave

    Brad, I wouldn’t go so far as to call the question inappropriate, but I might call it a waste of air/ink.

  • dalea

    tmatt asks:

    Andrew Sullivan is right-wing on social issues?

    AS is firmly right to life with limited exceptions. He is a long time campaigner against affirmative action. He rose to prominence in his denunciations of political correctness and the promiscuity of the GL community. He is also highly critical of deficit spending and the stimulus. He refers to himself as an Oakshotian conservative; something like an English Tory. Other than GL issues he is usually conservative. The press tends to focus on his GL advocacy while missing his more right wing positions.

  • dalea

    What I find curious in this discussion is the absence of actual Lesbians commenting. It would seem likely that reporters would have a source or two in the Lesbian community who could give a simple yes or no. But I notice no one speaking on the subject who would be in a position to know. The prime journalist/commentator on the subject would probably be Rachel Maddow who is out. But not a word from her. Women are not Lesbians all by themselves. Instead there is a large, tightly knit community with endless functions and events. So, it should be relatively easy to place Kagan somewhere in it. But no one is able to do so.

  • Martha

    Brad, I don’t know if the question is appropriate or not. I do know if someone asked me “Why aren’t you married at your age?” I’d tell them it was none of their damn business.

    I don’t see how her sexuality is going to affect her fitness for the post, unless the idea is that she’s being urged to come out of the closet so that she can be ‘encouraged’ to vote the ‘right’ way on cases likely to come before the Supreme Court on gay marriage etc.

    As for Andrew Sullivan *snorts and rolls eyes* – I thought he had enough on his plate tracking down the “truth” of Sarah Palin’s allegations that she is the mother and not the grandmother of Trig?

  • Brad A. Greenberg

    I like your hypothetical response, Martha, though, to be fair, there is a reason that the vast majority of politicians are married — and it’s often not because they believe in fidelity.

    I also agree that whether Kagan is gay, straight or straight asexual, it’s not going to affect her fitness for the post. But others would disagree with that, which is why I think it is an appropriate question.

  • dalea

    Andrew Sullivan’s reason for asking:

    This question is not about someone’s sexual preferences – by which I mean, whether you like your partners tall, short, hairy, buxom, skinny, fat, whatever, and what you might like to do with them. It’s about your emotional core and the integrity with which you have lived your life. It matters if a Supreme Court Justice has lived his life as a convenient careerist lie. It tells us a lot about him. And for gay people who have had to make these choices, and risked a huge amount to do so, it is somewhat offensive to be told this experience is just not that big a deal.

    Found at:


  • Jerry

    Terry, first I was thinking of another posting that mentioned a right-wing blogger and forgot to post a reference.

    Also, you WOULD oppose — I assume — any Supreme Court justice who openly support the overturning of America’s current regime of laws on abortion, correct? Isn’t that what the whole Bork era has been about?

    If the court overturned Roe, it would go back to being a fight at the state level. So there is no doubt that I would be unhappy but a Justice’s career is not limited to single-issue politics.

    After all, the current very conservative court recently enshrined the principle that corporations are allowed to obtain the best elected officials money can buy by violating their stated support for precedent and in an act of judicial activism overturning long-standing campaign financing limitations. Who knows what basic principle that we all rely on they’ll overturn tomorrow.

    So what mode of interpretation a justice brings to constitutional questions is a preeminent issue for me. http://www.usconstitution.net/consttop_intr.html

  • Julia

    I think the court decided that if unions can politic then corporations should be able to do so, too.

    Andrew Sullivan is right-wing on social issues?

    This is the second reference to social issues I’ve seen in the last couple of days at GR. What do news reporters mean by social issues?

    As opposed to what other kinds of issues? The other GR post included abortion as a social issue and now sexual orientation is also included. What is the criteria for being a social issue?

  • c3

    tendency toward plaids

    Are all Scottish women gay?

  • http://bendingthetwigs.blogspot.com Crimson Wife

    I had a heated discussion with my ultra-liberal aunt over the weekend about this issue. She tried to make the parallel with race & religion but it doesn’t work IMHO. Nobody on the court is hiding his/her race or religion. When the Senate was holding confirmation hearings, it was fair game to grill Sonia Sotomayor about how being a Latina might impact her rulings on civil rights cases or Sam Alito how being a Catholic might impact his rulings on abortion. But because Ms. Kagan is apparently back in the closet now (though she was well-known to be a lesbian back when my DH attended grad school at Harvard from ’03-’06), Senators cannot probe how her sexual orientation might impact a ruling on gay “marriage”.

    Judge Vaughn of the 9th Circuit, who is presiding over the Prop. 8 challenge, is openly gay and it hasn’t been a huge issue with conservatives as of yet. Because he is honest about his sexual orientation, everyone knows where he’s coming from. The issue I have with Ms. Kagan isn’t that she’s a lesbian, but that she’s being dishonest about it.