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Why We Should Stop Talking About Elena Kagan's Sexuality

Written by By Julia Baird, Newsweek   
Thursday, 13 May 2010 20:29
Elena Kagan, Supreme Court nominee, traversed Capitol Hill by tram as she made the rounds of Senate leaders Wednesday, 05/12/10. (photo: J. Scott Applewhite/AP)

Elena Kagan, Supreme Court nominee, traversed Capitol Hill by tram as she made the rounds of Senate leaders Wednesday, 05/12/10. (photo: J. Scott Applewhite/AP)


ou know things are getting a little grim when Eliot Spitzer has to vouch for your heterosexuality. "I did not go out with [Elena Kagan], but other guys did," he told Politico. "I don't think it is my place to say more." Indeed. Wonkette pounced on the story with glee: "Eliot Spitzer: I Did Not Pay Kagan for Sex." Which is a relief because that really would have complicated things.

The rather distracting debate about Elena Kagan's sexuality reached fever pitch this week, thanks to a powerfully argued series of posts by gay blogger Andrew Sullivan, who insisted that Kagan's sexual orientation should be a matter of public record if she is going to be confirmed as a Supreme Court judge.

"It is no more of an empirical question than whether she is Jewish," he argued. "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."

Let's get one thing clear: it should not be an "accusation" to ask if someone is gay, nor a "slimy" attack. Nor should it be considered a "charge," as a White House spokesman declared it to be last week. Being gay is not a crime, and not a shame. Sullivan has a point. But it is still, for some, a private matter. For those people, it should be their decision whether or not, or when, to come out. If Kagan was indeed a lesbian, the story should be her own. But now that the question has been posed, and an answer has been given, can we move on? Questioning is one thing; harassment and prurience are another. The unfortunate thing is, now that Kagan's love life is on the agenda, every date, awkward kiss, and broken relationship is of interest to some commenters. And these kinds of details should not be required, not unless all the other judges on the court are going to be treated in the same way (and, frankly, that information might be a little stomach-turning).

Unless the many people who have addressed the topic are lying and Kagan has hidden her supposed homosexuality not just from President Obama but her best friends as well, the case should be closed. The rumors seemed to only gain momentum this week: First the White House addressed them by calling them "inaccurate" last Thursday. Were administration officials telling the truth? Or were they actually suggesting it's a bad thing to be gay? Next, Kagan's friends came out armed with facts aiming to prove that while she might be able to hit a ball with a bat, she is still straight. And this is where things got a little depressing. Sarah Walzer, Kagan's close friend and law-school roommate, said the problem was that Kagan had not found the right guy: "I've known her for most of her adult life and I know she's straight. She dated men when we were in law school, we talked about men - who in our class was cute, who she would like to date. She definitely dated when she was in D.C. after law school, when she was in Chicago, and she just didn't find the right person."

Then, showing how far this discussion has strayed from what attributes and intellectual approaches we want in a powerful Supreme Court judge, Walzer went on to say that Kagan had also engaged in "girl-talk stuff" about how to get a guy's attention. Her problem was less "how to wear your hair" - which has gone from long and parted in the middle to a shorter style - and more how not to discourage potential suitors who might be intimidated by a woman who is both exceptionally smart and confident, a sadly familiar refrain. "It's an ongoing challenge for very smart women," said Walzer. "There are not very many men who would choose women who are smarter than they are."

So now, deftly, the narrative swings from the vices of the closet to the dashed romantic hopes of smart girls. From a brainy Billie Jean to a baffled Bridget Jones. From a potential gay icon to a reminder of the cliché that clever girls stay single. Which makes the discussion a touch awkward. When former White House communications director Anita Dunn chimed in to condemn the CBS blogger who suggested Kagan was gay, she said he was simply "applying old stereotypes to single women with successful careers."

Apparently, for some members of the public, softball + short hair + smart + single = lesbian. (Aside: I am all in favor of having athletic lesbians ruling the country; I wish more of them would run for office. It might bode well for our civil-rights debates.) But these assumptions are silly. If Kagan were to say she is a not a lesbian, what would we be discussing then? Loneliness? How women may succeed professionally but fail personally? Let's not forget that bachelors have not historically been stigmatized - spinsters have. Bachelors were playboys, but spinsters were pitiful.

Try this little test: type the words "Elena Kagan" into Google and see what the top searches are. At the time of this writing, "Elena Kagan husband" and "Elena Kagan personal life" were the top two; fifth was "Elena Kagan married."

I understand that the closet is a dark and oppressive place for those both in and out of it. I think we need more diversity on the Supreme Court; I'd like some more mothers on there, for a start. But I would rather know Kagan's views on the Constitution - on taxes, health care, the rights of states, abortion, corporate donations - than whom she goes to bed with. We have received an answer, however indirectly, and even Andrew Sullivan has declared he has written his last post on the matter. He has moved on. Can the rest of us do so, too? The last thing we need is a phenomenally bright, driven candidate for the Supreme Court to be reduced to discussing her dating life. Bridget Jones made us laugh, but she was an idiot.


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+11 # Guest 2010-05-13 23:37
Why we should stop talking about Elena Kagan's sexuality? "We" never should have started talking about it in the first place. I put the words "We" in quotes because a lot of people didn't think the topic is worth a hoot anyway.

The more that you talk about it, even to try to diminish the matter, the more you play into the hands of the homophobes.
+8 # Guest 2010-05-13 23:48
Could care less about her sexuality, more concerned about her ethics. In her role as solicitor general, she recently
sided with Monsanto on the Roundup Ready alfalfa issue, a month before the Supreme Court heard arguments in the case, despite the fact that the US government was not a defendant in the case. It seems that Kagan does not support a thorough study of GE seeds and their potential impact on environmental and human health. This should be of far greater concern to Americans than her sexual preferences; however, she appears to be the "corporate choice," not the "people's choice," and the people have no voice in her selection.
-1 # Guest 2010-05-14 08:00
Uh...Borneo...d idn't you mean that you COULDN'T care less?
+4 # Guest 2010-05-13 23:53
Andrew Sullivan and anyone who proposes that Elena Kagans sexuality should be public knowledge, especially given the possibility of becoming a member of the Supreme Court, is scum.

Such scum should be publicly flogged, but alas, in our land of the free, scum are free to be scum. Let us not propose though that being free confers any portion of respectability upon such scum. It doesn't in the least.
+6 # Guest 2010-05-14 01:20
I do not care for Elena. I couldn't care less about her sex life ... that is none of my concern. From what I have read about her she is about as far from "progressive" as she could possibly be. We need someone on SCOTUS to represent "We The People". Please explain to me how corporations can be granted "personhood" when a corporation is immortal? If corporations are "persons" they must die. And corporations get the best healthcare whenever they need it! They pay nothing for that service. When they get sick from gluttony, we bail them out with TARP-brand healthcare. When I get sick, people like Elena want me to die quickly. The biggest tipoff that Elena is the wrong choice, the GOP cannot find anything wrong with her. That's good enough for me ... find someone the GOP hates enough to spit on. That is who I want! No matter, Elena will get robe and America will suffer for decades ... again. Thanks for nothing Barack. I carried your torch and you burned me. Good luck in 2012.
+4 # Guest 2010-05-14 02:14
This kind of stuff is to be expected to be used against any candidate opposed by the Republicans, and watching these Rovian tactics in play should make one ask if anyone at all is anticipating this. If not, I wonder why! It's a shame of we can't learn a lesson from all the previous slime schemes!
+1 # Guest 2010-05-14 02:16
Outlandish to discuss sexual preferences!It looks like 'dirty tricks' have survived 'tricky dick', to make the GOP the DTP, which has sunk to levels of parties in countries which we have criticized. We have lost credibility in the world as a republic. We need a 'new' Republican party founded on the principles of Lincoln.
+13 # Guest 2010-05-14 03:35
Unfortunately for her, so it seems, she isn't the dainty type. If other people on the supreme court were to have been chosen for their looks, i.e., men for their masculine good looks, nearly every seat would be vacant! I've rarely seen such a bunch of unattractive specimens! If appearance/orie ntation are to be integral parts of one's "C.V.", then write this as part of the existing requirements. How absolutely, disgustingly superficial!
+7 # Guest 2010-05-14 04:16
From Julia Baird: "(Aside: I am all in favor of having athletic lesbians ruling the country; I wish more of them would run for office. It might bode well for our civil-rights debates.)"

Even if they lack integrity? As Solicitor General, Kagan's intervened on behalf of Monsanto in the Roundup Ready Alfalfa case. What about OUR and farmers' civil rights in not having to be subjected to or forced to grow genetically engineered (read: heavily sprayed) plants? Or having grass-fed cattle subject to the same (e.g., Roundup Ready alfalfa)?

This woman has no integrity based on this alone. And we don't need another pro-Monsanto "justice" on the bench.

I hope everyone who cares about this issue -- who's tired of Monsanto's tactics -- to call your senators and protest. This is a health/safety issue as GE-plants mess with intestinal flora. What else would we expect from a chemical company?
+3 # Guest 2010-05-14 12:59
Thank you ForestMime for drawing attention to this fact. Anyone who sides with Monsanto is the ENEMY in my book. If you don't understand that issue, watch "Food Inc." I don't care if she is married fifty years and has twenty children, if she sided with Monsanto, she is not fit for the court. People have to wake up and see how we get divided over side issues and miss the BIG PICTURE. We think Obama is "Our Guy" because he is a Democrat. But why is Eric Holder supporting all the same positions as the Bush Admin? Why does the White House assert that Obama can order the execution of US citizens abroad without trial? Aren't there hundreds of more qualified candidates than Kagen? Even if you limited your nomination to only women in order to prove how progressive you are, there are hundreds of women lawyers and judges who have actually published articles and written holdings. Kagen has written a couple of articles. Of course, Obama was head of the law review and never published a single article.?!?!
0 # Guest 2010-05-14 04:59
I conglatulate President Obama's female perspective and Ms.Elena Kagan'achieveme nts to the present nomination.Howe ver,I wonder if America people are aware that the world is assessing their values in terms of how they respect identities specifically of women.Would gay senators, judges be subjected to similar treatment? America think twice and let trivia for the small.
+1 # Guest 2010-05-15 01:08
Quoting Magdalena Ngaiza:
.However,I wonder if America people are aware that the world is assessing their values in terms of how they respect identities specifically of women.Would gay senators, judges be subjected to similar treatment?.

I am betting Senator Graham pounces on this issue with his usual style of asking embarrassing questions, both the him and the nominees and witnesses to make a rhetorical point. However, he has a personal interest in how this issue has been handled. I expect him to vilify those who use innuendo about sexual orientation to denigrate people either by claiming they are gay or by claiming they are a closeted gay. Both groups deserve vilification.

I learned in high school about people tearing down someone's reputation this way and that it is impossible to fight the rumors or defend oneself. I expect Senator Graham to be very sensitive to this issue. There are going to be a lot of red faces when he's finished.
+5 # Guest 2010-05-14 06:06
I feel absolutely irate! I suspect that, since the US is so obsessed with (war), sexuality and appearance, that for women to be hired, there will be ever-increasing demands that one be plasticised with dyed, long blond hair, to have undergone breast augmentation, botulinum, lipo as well as to suffer from anorexia, even if applying for a position at Wal-Mart. When will we expect the same of "Joe the Plumber" types with their bald spots, pot bellies that rest on their thighs, triple chins, etc.?! America is in the midst of a "fat revolution," but people expect perfection from everyone but themselves. What a pretty pass! I am off to have my hair cropped, to fatten myself up, buy myself a wardrobe consisting of blue jeans and stop off to buy a baseball bat, so as to consciously object to the constant hypocrisy displayed by those who criticise while looking (to put it politely) so much less then exemplary, themselves!
0 # Guest 2010-05-14 13:16
i want a women there is no doubt, gay or not. NOT this one in a million years though and I was for Obama from the very beginning. Consider teh background and the criteria Jyll. There are so many more qualified than this one. And I am not talking about a man.
+2 # Guest 2010-05-14 06:39
I am a republican and not a lesbian, and I don't care if she is. The only thing that should concern people is that she doesn't vote too far left. Her mind is the only thing to be concerned about.
+1 # Guest 2010-05-14 13:18
She will vote far right when it comes to ME wars and ME policy. This much we know and should very much take note unless we want to risk being labeled as one of the ignorants.
+4 # Guest 2010-05-14 06:47
Sullivan or no, it's none of anybody's goddamn business what her sexuality is unless someone is accusing her of raping little boys, or girls. The privacy of being Jewish is not the same as the privacy of what goes on in the bedroom. The reason why Jews developed an instinctive urge to hide their religion is because they - and their children -were often enough impaled and burned alive for it over the millennia whereas the hiddenness of sexuality has been a force throughout human history, even in our pornographic age.
I thought we Americans - at least some of us - had learned the lesson of the privacy of sexuality after the Clinton circus.
+1 # Guest 2010-05-14 07:59
pedophilia is not a sexual orientation. gays have instinctively learned to hide their orientation because historically they also have been killed and done violence to for who they are.
and lbgt folks don't stop being gay when they step outside the bedroom door - mr. sullivan is not suggesting that anyone share details of their latest tryst or favorite position.
+1 # Guest 2010-05-14 13:23
As far as I know short of castration pedophilia is not curable. If that's not the definition of a sexual orientation what is? Its the same as homosexuality. People are evidently born with altered brain genetics that cause this sort of sexual orientation to take place.

Unless you are trying to say pedophilic lust is voluntary and all people are pedophiles which also seems ridiculous, I don't get your comment. Are you suggesting pedophilia is culturally invented and homosexuality is not?
+1 # suejeffers 2010-05-14 16:02
pedophiles can be either homosexual, heterosexual or bisexual - that is their orientation.

pedophilia is no more an orientation than bestiality, sadism, biastophilia (getting turned on by rape), vouyerism, mechanophilia (wanting to get it on with your car or other machines)

those are paraphilias - defined as powerful and persistent sexual interest other than in copulatory or precopulatory behavior with phenotypically normal, consenting adult human partners.

for a more complete list
+3 # Guest 2010-05-14 06:48
The Mud People, AKA the GOP, need to have some mud to fling. It matters not what kind of mud just so long as it smears and can easily be flung. Very desireable if it can be made to stick. Right wing mud is the best mud so far as I can tell. It is the type most often, and most liberally, flung.
+5 # SchoonerScotty 2010-05-14 06:53
This story reeks of our nations' continual collective homophobia. As long as Elena Kagan has a stellar background in law and a deep understanding of our political process, know one needs to concern themselves about her private life.

Most European countries and Canada have gone way beyond our provincialism on this topic.

Sadly, only those who see some political gain with special interest groups might find value in trying to "make much ado about nothing."

Kagan, like the rest of us, need be entitled to her privacy in her personal life. What people do socially and within the confines of their own home concern none of us, unless they are committing grievous crimes.

Grow Up America - Julia Baird's last paragraph says it all!
+5 # Guest 2010-05-14 07:11
We should not be discussing Elena Kagan's "dating life"; it's irrelevant and a distraction from important issues that should be part of the discussion. One of those is the brief to the Supreme Court written by Ms. Kagan in April as Solicitor General for President Obama. In this brief, Ms. Kagan urged the Court to reverse a decision entered against Monsanto Corporation by a federal district court, upheld by a federal appellate court, denying Monsanto the right to market its genetically modified alfalfa seeds; the lower courts reasoned that environmental and health impacts had not been studied, thus posing a threat to farmers and citizens who are participating in the growing organic food movement. There was no apparent reason for the government to intervene on behalf of Monsanto, and against citizens, in this case. I find this very disturbing and believe this is the type of judicial action taken by Ms.Kagan that should be legitimately debated.
+9 # Guest 2010-05-14 07:44
The only thing that should be considered when choosing a candidate for the supreme court is knowledge of the law and the constitution. Period. Objectivity should be the norm, not politics.

Having said that, however, we should all recognize that the supreme court officially declared itself dead, in the grand constitutional scheme of things, when they interfered with a national presidential election in 2000, in which they had no legal right to do.
+3 # Guest 2010-05-14 09:12
being in or out of the closet is not defined by whether you share pornographic details of bedroom encounters - it is being able to live your life openly without fear, not hiding your partner and lying about who you are (not what you do), for fear of being fired, evicted, beat to death with a baseball bat, disowned, losing friends.
The reason this has become an issue, is the republicans feel they can score points with those who want to keep the laws in place that relegate gays to second class citizenship. Fear and loathing are their favorite campaign tools, and gays have been an easy target in the past to whip up the base. just say activist judges!

the real problem isn't that she should be able to keep her private sexual encounters private. it is that those who actually are lgbt should be able to live their everyday lives in the open, just like their heterosexual neighbors, without fear.
+2 # Guest 2010-05-14 09:23
Unfortunately there are many men, and some women, who see women having merit only if they look like Carie Prejean. How many times have you heard someone only comment on a woman's appearance, rather than her character. How many movies have female characters with no speaking parts? Hint: I won't be going to se Ironman II.
+4 # Guest 2010-05-14 10:08
I could care less if she's in bed with a man or a woman. I do care, though, that she's obviously in bed with Monsanto.
+1 # Guest 2010-05-14 11:27
Sullivan is right that sexuality shouldn't matter. He believes that sexuality does not matter, but believing something doesn't make it true.

Sullivan says, "It is no more of an empirical question than whether she is Jewish." The comparison to religion is interesting. The constitution guarantees the freedom of religion, but that doesn't translate to public acceptance of any religion.

What if President Obama had nominated a satanist? Freedom of religion or not, such a nominee would not have a chance of confirmation.

Homosexuality has nothing whatever in common with satanism other than being unacceptable to large parts society, but I think it unlikely that an openly homosexual nominee could be confirmed by the current senate.
+1 # Guest 2010-05-14 13:48
Yeah, it's a shame isn't it.
+2 # Guest 2010-05-14 12:50
Excuse me, but since when does Andrew Sullivan get to set the standard for a supreme court justice? As a gay man I assure you that he does not speak for me. For sexual orientation to truly enter the realm of non-discriminat ion it should not necessarily be an issue of discussion in Kagan's care. At best, perhaps he's suggesting it's as ridiculous as discussing her religious background. At worst he's clamoring for some attention regardless of the resulting trouble and obfuscation. Frankly, I'll be delighted when the justices are chosen from the ranks of those educated in out public universities. Why do Stanford, Harvard, Yale & Princeton seem to have a lock on our most powerful public servants?
+3 # Guest 2010-05-14 13:10
There were so many homosexual and female candidates that were far better that's why. This selection is a disater, and a complete betrayal to America by Obama. Only AIPAC is cheering now.
+3 # Guest 2010-05-14 16:46
Could questions of her sexuality be a red herring to get knee-jerk progressives behind her without questioning her positions on a woman's right to choose, her position on corporate "personhood, GM plants and other issues?
+2 # Guest 2010-05-14 17:14
What a mess the nation has become. It's falling apart, economically, financially and morally insecured and still that pervert party of NO still is bent on destroying everything the Democratic Party is trying to do.

By now, President Obama should realize the GOP is hell bent on destroying the nation in order to destroy him.

The GOP is anti, un- and non-American party. It being copy on fascism and we all know what that will result in, don't we?
+3 # Guest 2010-05-14 22:39
How pitiful that the nation has not grown enough to ask questions about this woman that are not this shallow. What difference does it make who she finds love with? We should be asking her how she feels about losing, for the country, the Citizen United case, (I heard today that the great Senator Bernie Sanders plans to ask her that question) that will put our elections and the country in jeopardy. She may have fought the case knowing the consequences of the loss, but being against 5 of the most un-Constitution al, America hating Supreme Court justices ever, she couldn't help but loose. Even if she had given them all her blood, they were not going to give up the opportunity to allow corporations to become all powerful. Even if she is gay, hopefully she is not a hypocrite as the Haggards and the Rekers.
0 # Guest 2010-05-15 08:34
I would consider a street whore with having more moral, more compassion for humanity, display more kindness and family values than the entire Republican Party, the GOP, the five Conservative Supreme Court Justices who are selling our democracy to the highest corporate fascist-capital ist bidders!

Being Catholic or prostestant doesn't matter in nominating Supreme Court Justices, what matter is that do not use their hypocrisy for advancing corruption, racism, fascism and neo-conservatism.

We need supreme court justices that will administer justice, not inquisitors like in the Dark Ages!

When a nation is dumb enough to "appoint" instead of "elect" their Supreme Court Justices, than it gets what it deserves and we are getting what we deserve with this Five Conservatives Supreme Court Justice.
+3 # Guest 2010-05-15 14:06
I really react strongly to the author's gratuitous trashing of Eliot Spitzer in her unnecessary intro. He can make a great contribution to our country and I would like to see him back in office, using his tremendous intellectual and analytical gifts rather than sidelined by hypocrites.

I also object to one person "outing" another.
+1 # Guest 2010-05-15 14:51
Let's not talk about it and pretend we did, then move on with life.
+1 # Guest 2010-05-15 19:00
interesting essay

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