Why the ‘Is She or Isn’t She’ Question Matters for Kagan, Regardless of the Answer

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Photo: Chip Somodevilla/Getty Images

At the moment, on Google Trends, Obama's Supreme Court justice nominee Elena Kagan's name appears twice in the top twenty searches. The second time it appears, the term is "kagan supreme court." The first? "elena kagan personal life." Well.

For a while — until today, in fact — we'd been wondering if we'd sounded the alarm bell too soon about the whole "Is or isn't Elena Kagan gay?" story line. After all, no major politicians have come out and asked the question, or even raised it as a point. But after Obama's announcement today that Kagan is, in fact, the real-deal nominee, the Internet media has gotten in a tizzy over the issue.

The American Progress blog TAPPED wonders whether it matters if Kagan is gay or not. Emily Bazelon and Dahlia Lithwick say as long as there is no reported evidence, and since the White House has said she's not gay, we should stop asking the question. Andrew Sullivan says the question should be put directly to Kagan and she should answer honestly — she owes it to us to provide evidence either way. "It is no more of an empirical question than whether she is Jewish," he says. "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."

This argument implies that a minority jurist's judgment is tinged when it comes to making decisions about his or her own minority in a way it is not elsewhere — an idea that conservative groups like Focus on the Family would encourage you to worry about. You can argue both ways on that, but really, it's not the issue at hand. Whether or not someone is black, or Jewish, or Latina, or Italian is not an issue by itself that will block an appointment, even though that particular perspective may come into play in the court. (Case in point: "Wise Latina" Sonia Sotomayor.) By pushing this particular question, Sullivan is strolling down the same road that the Christian News Wire is when it argues, "If Elena Kagan Is a Lesbian, She Should Say So because Public Has a Right to Know."

Two additional strange travel companions in the whirl of responses today are gay-rights group the Human Rights Campaign, and the National Organization for Marriage. The two are focused more precisely on the topic at hand, and the topic that (in the absence of actual evidence that Kagan is gay) will most likely come up in confirmation hearings: whether or not a vote for Kagan is a vote for gay marriage. Both Gallagher and HRC seem to say that it is. That is, if Kagan gets on the Court, she will vote for gay marriage when the issue comes before her (as it likely will in the Olson-Boies Proposition 8 case). This, at least, is a debate on the decision that's really facing us: Is a known, or predicted vote for equal marriage rights for gays and lesbians a disqualifier for a Supreme Court candidate?

The Nation's Richard Kim argues that Kagan is not gay because she never said she was, and does not outwardly live a gay lifestyle. But it's impossible to imagine now that some senator isn't going to ask her if she's gay during the confirmation hearings. The White House already said she isn't gay. As we've argued before, she now can't say differently if she wants that seat. (And by the way she's led her life, she clearly wants that seat and she wants it bad.) So she'll get up there and she'll say no. And then the issue for people following this story line becomes whether or not she is in the closet, and whether a closeted advocate is any kind of advocate at all, and so on.

But that's a little beside the point. Elena Kagan will not be the official "first" gay Supreme Court justice. The questioning itself is pointless. But the fact that the questioning exists is potentially very important, sad as it is to say. If she isn't confirmed over her perceived stances on gay rights, it will prove that America is not ready for this particular "first" — regardless of what Elena Kagan actually does in her private life. Thankfully, so far it looks unlikely that will happen.