Don't Bork Kagan
Sex, religion, and a nominee's right to privacy.
Should we ask Elena Kagan whether she's gay? Should we demand an answer?
Inquiring minds want to know, and not just on the right. "Is Supreme Court Nominee Elena Kagan Really a Lesbian?" asks Gawker. "So Is She Gay?" wonders the Atlantic's Andrew Sullivan. "Did Ms. Kagan bring a date to your wedding?" a reader presses The New Yorker's Jeffrey Toobin. And these are just the overt inquirers. Thousands of others are buzzing online. My colleague Jack Shafer points out that two of this week's most popular Google searches are "elena kagan husband" and "elena kagan personal life."
Sullivan compares sexuality to religion. Whether Kagan is gay, he writes,
is no more of an empirical question than whether she is Jewish. We know she is Jewish, and it is a fact simply and rightly put in the public square. If she were to hide her Jewishness, it would seem rightly odd, bizarre, anachronistic, even arguably self-critical or self-loathing. And yet we have been told by many that she is gay ... and no one will ask directly if this is true and no one in the administration will tell us definitively.
It's an instructive comparison. Let's go back and look at the last time a Supreme Court nominee tried to hide his religion. That nominee was Robert Bork.
In July 1987, shortly after President Reagan nominated Bork, Time reported that Bork had been "raised a Protestant" but had "married a Jewish woman" and, though remarried to a Catholic, was "now an agnostic." Democratic activists in the South pounced on this report, charging that Bork had "doubts about God" or "doesn't believe in God."
What followed was an excruciating inquiry into Bork's beliefs and religious associations. The Long Island Jewish World asked Bork whether his children had been raised Jewish. Bork replied that they ''were raised with free choice.'' The reporter asked him whether the kids defined themselves as Jewish. Bork said that some of them did but were "non-observant.'' As to why he had married a Catholic ex-nun after his first wife died, he could only say, "I don't divide the world up in that way. I didn't marry my first wife because she was Jewish or my second wife because she is Catholic."
By September, Bork's handlers knew the agnosticism charge was killing him. At his confirmation hearings, he tried to put it to rest this way:
I don't want to go into my religious beliefs, but the report in a national magazine that I was an agnostic arose from the following conversation, and the reporter agrees that it rose from the following conversation. He said, ''You're not terribly religious, are you?'' And I said, ''Not in the sense you mean.'' That's it. … And I later denied that I was an agnostic, in The New York Times, when I got a chance to. I took him to be talking about regular—you know, great piety and regular church attendance, and that's what I meant. … But agnostic does not come out of that conversation in any way and I am not an agnostic, but that's as much as I think I should say about it.
The Time reporter who had interviewed Bork, David Beckwith, was dragged out to explain the "agnostic" label. Beckwith said that in their interview, Bork had conceded that as an adult, he had never belonged to a church. Yes, Beckwith said, Bork had called himself a ''generic Protestant'' with religious notions that were ''more philosophical than emotional.'' But Bork's friends had told Beckwith that Bork was agnostic.
Will Saletan covers science, technology, and politics for Slate and says a lot of things that get him in trouble.
Photograph of Elena Kagan by Win McNamee/Getty Images.