It’s obvious that discussion of Elena Kagan’s sexuality isn’t going to go away. The right has given themselves permission to assume that Kagan is gay because Queerty reported:
The front-runners appear to be federal appellate judges Diane Wood and Merrick Garland and U.S. Solicitor General Elena Kagan, the lesbian former Harvard Law dean…
…As we understand it, Kagan is out, but has not commented on her sexuality for reporters. But most notable about Kagan is not her sexuality, but her status: While all the Supreme Court’s sitting justices have been judges, Kagan has never held a bench seat.
Queerty appears to be a legitimate gay website and not some smearmongering front rag. I can’t vouch for their reportorial ethics or anything because it’s not a site I’ve ever read before. But, in any case, the righty blogosphere thinks that Queerty’s reporting is decisive and are treating it as such.
This controversy started when disgraced plagiarist Ben Domenech used his space at CBS News to openly speculate that Kagan is a lesbian. To which the White House responded forcefully:
CBS initially refused to pull the posting, prompting Anita Dunn, a former White House communications director who is working with the administration on the high court vacancy, to say: “The fact that they’ve chosen to become enablers of people posting lies on their site tells us where the journalistic standards of CBS are in 2010.” She said the network was giving a platform to a blogger “with a history of plagiarism” who was “applying old stereotypes to single women with successful careers.”
Obviously, I have no idea what is true. The White House is on the record saying that the rumors are not true, so they would not want to try to walk that back if it turns out the rumors are true. Matt Yglesias even tweeted that he had been under the impression that Kagan was openly gay, so this is not all coming from the right.
Supreme Court nominations can be kind of cut-throat, and I wouldn’t put it past supporters of some candidates on the short-list to make trouble for Ms. Kagan because she is widely considered the frontrunner for John Paul Stevens’ seat on the court. Of course, the rumors could be true, but I would hope the White House wouldn’t call the rumors ‘lies’ if they were not. That would effectively kill her chances of being nominated, while being gay wouldn’t necessarily. William Jacobson is correct that the public would demand to know about any straight nominee’s spouse or significant other in order to vet for possible conflicts of interest, so it wouldn’t be appropriate for a nominee to attempt to stay closeted through a confirmation process for a lifetime appointment. On the other hand, a candidate cannot prove a negative. I believe, if she were nominated, that Kagan would have to confirm or deny her orientation and any lasting relationships.
Regardless of the truth, I agree with Anita Dunn that older single women are often stereotyped as lesbians and the subject of rumors. What’s weird is were entering a phase where tolerance is the expectation and defensiveness about accusations of homosexuality is seen as homophobic in itself. So, we see EqualRep.com blasting the White House for getting angry about CBS News’s lax editorial practices and demanding that they apologize for treating alleged homosexuality as a slur. I think EqualRep is being a little idealistic. We’ve made progress, but we haven’t reached the point where being gay is not a liability for a nominee to the Supreme Court. The people spreading these rumors do not wish Elena Kagan well. At a minimum, they are merely repeating something they’ve heard. But no one thinks this controversy improves her chances of serving on the Court.
