Also in Slate, Dahlia Lithwick explains why the inscrutable Kagan makes everyone nervous. John Dickerson wonders how Kagan will convince America she has a special understanding of ordinary people. Emily Bazelon tears down the argument that Kagan was an extremist in her policy toward military recruiters at Harvard.
I wish a president would finally get the gumption to nominate an uncloseted gay or lesbian to the Supreme Court.
No, I don't believe a homosexual's life experience will make him or her a better justice any more than I believe being an African-American, a graduate of a state law school, an armed-forces veteran, a Mormon, or a mediocrity—as Sen. Roman Hruska, R-Neb., once propounded—will better prepare them for service on the court.
And, no, I'm not making this public plea because I'm desperate for a gay or lesbian to join the court, or because I crave diversity, or because I believe in a "representative" court, which was once an article of political faith in the United States. Everybody believed that the Supreme Court must be geographically balanced, with seats reserved for the Southern states, New York, the West, etc. After the geographically balanced court became passe, people desired religious balance—or at least religious representation—on the court. Today, religious balance has become such a minor consideration that every member of the Supreme Court except for exiting Justice John Paul Stevens is either a Catholic or a Jew.
The reason I advocate the nomination of a qualified homosexual is this: Only by sending one through the meat grinder of Senate confirmation—as we have with Catholics, Jews, blacks, women, and a Latina before them—can we begin to purge identity politics from the court. (Yeah, we're probably still in a time when there must be "black" and "female" seats on the court, but give it time.) By nominating a qualified gay to the court, the president would create an environment in which—eventually, I hope—a nominee's sexual orientation is given the same shrug we give nominees' religion, gender, race, or state of residence, and the nation will be better for it.
One would think that we had already reached the shrugging point and that President Obama, backed by a solidly democratic Senate, could be persuaded to nominate a qualified, out-of-the-closet homosexual. Instead, he's nominated Solicitor General Elena Kagan, an accomplished lawyer who has deliberately left such a vague paper trail and such a oblique personal trail that we have almost no idea of who she is. At least when President George W. Bush nominated his cipher to the court, Harriet Miers, she came with enough corroborating material that we could determine she was an empty Bush loyalist.
By pushing her privacy to the vanishing point, Kagan puts herself at odds with our tell-all 21st-century culture. Kagan's reluctance to provide much in the way of personal history stands in contrast to Obama's previous nominee, Sonia Sotomayor, who delighted in showcasing herself as a successful, up-from-the-Bronx-projects, Spanish-speaking Latina who radiates empathy. Consistency demands that either the mute Kagan or the seemingly candid Sotomayor be our standard.
Kagan's tack hasn't prevented such writers as Andrew Sullivan and Michael Wolff from asking whether she's a lesbian or deterred Ben Domenech from reporting the "Harvard rumor" that she is. (Wolff asked the same question about Sotomayor last year.) Sullivan gets to the heart of the matter when he describes the unwillingness of the press corps to ask the question directly and of the White House to speak definitively about Kagan's orientation as "a function of liberal cowardice and conservative discomfort."
Kagan isn't the first high-profile single person whose sexual orientation has been the object of conjecture, probably because any single person over a certain age who doesn't actively signal his orientation freaks us out. Harriet Miers was the object of gossip during her short run as a nominee. "Why the whispers—is Supreme Court nominee Harriet Miers gay?" asked the Boston Herald. Before Miers, there was Condoleezza Rice; before Rice, there was Justice David Souter. When Souter, a 50-year-old lifelong bachelor, was nominated to the Supreme Court in 1990, the Orlando Sentinel reported, "We wonder, 'What's wrong with him? How does he feel about women? Is he anti-social, homosexual, misogynistic, immature or just plain dweeby?' "
Yet not all reporters are so skittish about the topic as Sullivan seems to imply. A year ago, Politico's Josh Gerstein reported on the gay activist effort to push for an openly gay member of the court, naming two prominent lesbian legal scholars as being on the "frequently mentioned" lists.
Perhaps the strongest indicator that the public thinks Kagan's private life matters—and that the public is more prepared to handle the truth than the press or the White House is—comes this morning in Google's "Hot Searches." Ranking in the fifth and sixth spots were "elena kagan husband" and "elena kagan personal life."