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Andrew Sullivan wants to know, once and for all, if Supreme Court nominee Elena Kagan is gay. He writes:
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. In a word, this is preposterous—-a function of liberal cowardice and conservative discomfort. It should mean nothing either way. Since the issue of this tiny minority—-and the right of the huge majority to determine its rights and equality—-is a live issue for the court in the next generation, and since it would be bizarre to argue that a Justice’s sexual orientation will not in some way affect his or her judgment of the issue, it is only logical that this question should be clarified.
To Sullivan, Kagan’s sexual orientation “should mean nothing either way”—-except that her sexual orientation will necessarily be instrumental in shaping a generation of civil rights law. Sullivan goes on to cite a Jeffery Toobin reader, who Sullivan says asks “the obvious question” on the nominee: Did Kagan bring a date to Toobin’s wedding, and was it a woman?:
Mr. Toobin, did Ms. Kagan bring a date to your wedding? Why can’t we discuss this matter? If she were married—-to a man—-there would not be silence. Would there be if she were married to a woman? Would she be nominated if she were?
That’s right: “The obvious question” to ask of a nominee for the United States Supreme Court boils down to, essentially, who she took to the prom. I don’t disagree that diversity on the court is extremely important, and that these demographic concerns can have a very real effect on how the law of the United States is interpreted. But Sullivan—-and Toobin’s reader—-have got it backwards.
If Kagan were married to a man, there would not be any silence on the details of her family life. There would, however, be complete fucking radio silence on the idea that her heterosexuality has any effect on her judgment on an issue like same-sex marriage.
Kagan has been nominated to a court with a history of confirming overwhelmingly white, heterosexual, Protestant, male nominees—-nominees whose white, heterosexual Protestant maleness has seldom been scrutinized as a contributing factor in their interpretation of the law. Of the 111 judges who have served on the Supreme Court, 108 have been white, 108 have been male, and zero have been identified as anything other than heterosexual. But somehow, race and gender only spark concern when a judge like Sonia Sotomayor is nominated; a justice’s sexual orientation will only irrevocably affect American history when she just might not be straight.
Like Sullivan, I’m looking forward to a time when we can talk openly about what it might mean to appoint a lesbian judge to the U.S. Supreme Court. But more than that, I’m looking forward to a time when we can talk openly about what it means to appoint a man to the Supreme Court, or a white person, or a straight person, or a Christian. Until that day, Kagan isn’t a coward for keeping her sexual orientation private. She’s just expecting to be treated with the same respect afforded to the 111 Supreme Court justices who have come before her —-justices whose sexual orientation was never considered a political issue.
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