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Archive for May, 2010

Supreme Speculation

She’s 50.

She’s never been married.

She has a boyish haircut.

And she plays softball.

Totally a lesbian!

At least, that’s the chatter about President Obama’s nominee to the Supreme Court, Elena Kagan. Usually when these nominations are announced, the pundits and reporters go directly to the candidate’s judicial record, lengthy opinion papers, and definitive statements on the law. But Elena Kagan has never served as a judge and seems to fit a stereotype for something controversial, so the murmuring began.

Gay blogger Andrew Sullivan got things going with his declaration that America deserves to know her sexuality:

It is no more of an empirical question than whether she is Jewish. 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. … 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. (Full post here)

But it has been clarified, sort of. Kagan’s law school roommate Sarah Walzer went on record with Politico to say, “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, all of those things.” If that is not enough proof (and how could it ever not be?!), disgraced former New York Governor Eliot Spitzer (also a law school classmate) declared, “I did not go out with her, but other guys did.” When Spitzer is vouching for your sexuality, you know things have taken a weird turn.

Back in April, a CBS News online opinion column insisted that Obama could please his liberal base by picking the first openly gay justice (referring to Kagan). A White House spokesman then complained to CBS because the column “made false charges.” As you can imagine, the gay and lesbian community did not take too kindly to the rumors being referred to as “charges.” The columnist, Ben Domenech, later added an update to the post: “I have to correct my text here to say that Kagan is apparently still closeted—odd, because her female partner is rather well known in Harvard circles.”

So, who to believe? And what should major news outlets do with their dilemma—report on speculation and thereby give it credibility, or ignore the rumors and fail to acknowledge a big part of what people are discussing?

For the record, I have known plenty of heterosexual women who were on the softball team in high school and who play intramural softball today. Also, I would venture to say that most middle-aged women I know cut their hair short a long time ago for convenience and style.

Of course, the most appropriate question to ask in this discussion is whether it matters if she is gay. Supreme Court justices are supposed to just apply the law and interpret the Constitution, right? But everyone knows that no person is an island and that court cases, especially at the highest level, occasionally come down to what the justices believe is fair and right. And identity politics continue to play a large role in the confirmation debates, even if mostly in the public sphere. Some grumblings, for example: there are too many Catholics on the Court; why are there not more women?; Sotomayor was chosen because she’s Latina; and so on.

But what bothers me the most about this whole saga is that people assume that just because she is older and single, there is something wrong or very different about her. It’s the age-old discrepancy that a 50-year-old single man is a bachelor, while a 50-year-old single woman is a spinster. If Kagan is straight, then it’s very easy to imagine a scenario in which this highly intelligent and successful woman put her efforts into a career that has led her to become the Dean of Harvard Law School, Obama’s Solicitor General, and now the nominee for the Supreme Court rather than putting the efforts into being a wife and mother. Is it possible she could have done all of those things and still been married with kids? It’s possible, I guess. But we must also be honest with ourselves and admit that there are all too many men out there who don’t want to date, let alone marry, a woman smarter than them. Just as smart as? Sure. But smarter than? Maybe not.

So, if we question her sexuality and get an insistence that she is straight, then the conversation is obligated to then shift the discussion to sad, lonely women with failed romantic dreams. And is that really a relevant conversation? How does a dialogue that is supposed to center on the political leanings of a brilliant legal mind manage to find its way to Liz Lemon and Bridget Jones? It’s embarrassing, and I can only imagine the degree to which Kagan is embarrassed. I am 27 and unmarried, but that does not make me gay or pitiful. In fact, there are plenty of days where I would take Kagan’s decorated career over the life of a married mother, considering some of the men and children I have met!

How do you feel about all of this? After seeing her picture up to bat in a softball game, with short hair, and knowing she is unmarried, did you wonder if she is gay? Do you think a judge’s sexuality could affect his or her decisions? Do Americans have a right to know about what happens in a justice’s bedroom? If the nominee were a middle-aged single man, would we be having this discussion?

At this point, I’d like to share just a few of the user comments from a Washington Post article that discussed the topic (all sic’d). I find these … entertaining. (Comments page here)

brickerd wrote: People don’t think she’s a lesbian because she’s unmarried at 40 or 50 — they think she’s a lesbian because her clothes and hairstyle practically SHOUT it.

Jerusalimight wrote: A Supreme Court justice who never committed themselves to someone else, never made a marital relationship, never raised children… has no business judging anyone else who did! Being married is not safe, like Kagan’s hiding in the ivory tower of PC was safe. It is not easy, like her getting political appointments because she parlayed the right jargon, was easy.
Being married is hard. Committing to others is hard. A judge who has never dared to join life cannot judge others who have. Thumbs down!!

uh_huhh wrote: That’s what I say about the Pope and every Catholic cardinal, archbishop, bishop, and priest.

cr8oncsu wrote: Since when is sexuality not an issue in this country?

rgs_tnr wrote: Please. You may be willing to accept that lie (or maybe just that niave) but I’m not. That she’s willing to be closeted by the President for the nomination says a lot about her and a lot about him as well. If he nominated an open lesbian then I’d consider it a non-issue; that he nominated a person who is willing to lie to the entire country about who she is, and that he is equally as willing to lie to the entire country about who she is, and that most certainly is an issue. Never in my life – not once – have I lied when someone asked me if I’m gay. I wonder…if she stands before congress and someone asks this question, and she says she is straight…when it comes out (as it eventually will) that she is indeed a lesbian, could she be charged with perjury? Could he?

randysbailin wrote: Let’s cut right to the chase at the risk of offending some. Maybe she’s not married because (1) she’s obviously been focused on her career and/or (2) she’s simply not very attractive.

mikey999 wrote: I would have asked Elena Kagan out when I was at Harvard Law, but I thought she was gay. Oh well.

Okay readers, tell me what you think. All opinions and thoughts are welcome and encouraged. It makes me very happy when people comment, so feel free!

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