Why We're Talking About Elena Kagan's Sexuality

You 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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