Wednesday, July 23, 2014
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Those irrelevant rumors

Why should we care whether or not Elena Kagan is gay?

Those irrelevant rumors

 

 

A number of U.S. Supreme Court justices - including William Henry Moody, John Clarke, the esteemed Benjamin Cardozo, Clark McReynolds, and Frank Murphy - were all fortunate to have served during the first half of the 20th century. They were spared the embarrassment of moronic public speculation about their personal lives.

None of those guys ever married. They were, in the parlance of the times, bachelors. But if they were alive and well today, and deemed fit by a president to serve on the high court, various bloggers and idealogues on both sides of the divide would undoubtedly be wondering or assuming or rumoring or faux-reporting that of course or maybe they had to be gay.

In other words, it would be much like the substance-free controversy about Elena Kagan's private life.

Some gay political bloggers are dying to get the skinny about her personal desires; as Andrew Sullivan breathlessly wonders, "Did Obama even ask about it? Are we ever going to know one way or the other?" And even before Kagan was named, the right-wing Family Research Council voiced its concerns about any judge who might be gay, because, after all, "homosexual behavior is a sin and does not reflect God’s created intent and desire for humanity....character and moral rectitude should be key considerations in appointing members of the judiciary."

To which I say, who cares whether Kagan is gay or not?

The case for full disclosure seems to hinge on the proposition that a judge who is gay will automatically be swayed by his or her sexual orientation to tweak the legal issues in order to rule in favor of gays. As Sullivan himself writes, "It would be bizarre to argue that a justice's sexual orientation will not in some way affect his or her judgment" of gay issues before the court.

That insulting line of reasoning implies that gay judges, simply by virtue of being gay, lack the requisite intellectual equipment to assess a gay-related case purely on the merits (or lack thereof), and rule in accordance with law and precedent.

And it's hard to see why the so-called mystery about Kagan's private life matters one way or the other - given the fact that she has taken positions both sympathetic to gays (by assailing Don't Ask Don't Tell as "a profound wrong," a mainstream stance echoed these days by Defense Secretary Robert Gates), and antithetical to gays (she stated last year that "there is no federal constitutional right to same-sex marriage").

But here's the non-issue from another perspective: In 2003, six high court judges - Kennedy, O'Connor, Stevens, Souter, Ginsburg, and Breyer - ruled in a landmark case that it's OK for gays to have private consensual sex. Their constitutional arguments in favor of gays were detailed and substantive. Are we supposed to assume that if an unmarried female judge had concurred in the majority decision, she would have done so only because her (presumed/rumored) gay orientation had propelled her in that direction?

It's a sad commentary on the times that Kagan's close friends have felt the need to come forward and deny that the nominee is gay ("not that there's anything wrong with that," as the characters said on Seinfeld). It would appear that Kagan stayed single due to her professional single-mindedness (a common occurrence among career women, particularly in the legal world, according to a 2007 study by MIT). Whatever. The sex watchdogs will play this one out, as befits the impulse to pry, and then it will be over. Once Kagan dons the robes, we'll be spared this kind of talk - at least until the next target invariably comes along. 

 

Dick Polman Inquirer National Political Columnist
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Dick Polman Inquirer National Political Columnist
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