Monday, May 10, 2010

Andrew Sullivan wants to "out" Elena Kagan

I don't have a real opinion on whether President Obama should have nominated Elena Kagan for the Supreme Court as opposed to the other realistic possibilities - I'm not an expert in this area.

But I can say one thing - I don't care what her sexual orientation is. I don't think it's relevant. I also don't think that it's relevant what her religion is.

Therefore, I find Andrew Sullivan's post, So Is She Gay? deeply offensive.

He writes:

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. 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.

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.
If Kagan is not interested in telling the rest of us what her sexual orientation is, I do not think it is any of our business. Sullivan is arguing that it is necessary for Kagan to out herself as gay (if she is gay) to fit his political agenda (which among other things is to get rid of DADT and approve gay marriage). I don't disagree with his political agenda (although I'm nowhere near as passionate about gay marriage as he is - ENDA is more important to me personally, since I'm single and likely to remain that way).

It's clear from Kagan's own history that she's opposed to DADT - judging from what she did as dean of Harvard Law School to oppose military recruiting at Harvard because of opposition to DADT. She only permitted military recruiting when it became clear the federal government would take away hundreds of millions of dollars from the Harvard budget if she persisted in her opposition. (And if she had persisted, I cannot imagine that the president of Harvard and the Harvard Corporation would not have insisted that she step down as dean).

And I don't know what dream world Sullivan's been living in. Does he think that Kagan could have reached her current position of solicitor general if she had not presented herself with ambiguity? (I don't mean that Obama wouldn't have nominated her, but that the trajectory of her career would probably not have occurred the way it did if she had been completely out, so that she wouldn't have been in the situation to be nominated for solicitor general). We have not yet reached the stage where being completely out is possible in all situations. I wish it were true, but it is not. For Kagan not to talk about her sexual orientation is not a matter of cowardice - it is a matter of prudence.

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