Elena Kagan: The Sexual Politics Of A Private Life

The kerfuffle over what Supreme Court nominee Elena Kagan does or does not do in her bed on her own time — and whether this will affect her ability to reason over legal issues — boils down to straight sexism.

It's sexism because the gossip, as Stephanie Mecimer succinctly points out in Mother Jones, boils down to five main things:

  • She wears her hair short.
  • She often wears pants suits (except she didn't yesterday, so take that, rumor mill!).
  • She doesn't publicly discuss her personal life.
  • She hasn't been publicly linked to any men and has no children.
  • She supports the end of Don't Ask Don't Tell.

In fact, add in comments about softball (notably, a serious pastime for both men and women at the nation's competitive law schools) and flannel, and such was exactly Gawker's case for Kagan's supposed lesbianism yesterday . Well, that and the poorly- and anonymously-sourced story on CBS's blog by RedState founder (and noted plagiarist) Ben Domenech that his editors pulled . Some sourcing.

(Notably, CBS pulled the post about Kagan's supposedly sexuality because the White House officially denied the that Kagan is a lesbian. Given the White House's spectacular vetting screw-ups in 2009, from Daschle to Geithner and beyond, it wouldn't be beyond them to have missed Kagan's supposed life-partner even as she served in the Administration for a year, but that seems as unlikely as the idea that they would honestly believe they could hide said partner or sexuality from the press, the blogosphere and the Congress during her second confirmation process.)

Why is that sexist? Let's be clear: Kagan doesn't fit neatly into the box defining appropriate female appearance (loves pants, wears short hair, isn't "hot") or behavior (single at 50 and not publicly bemoaning that status, worked long hours to achieve career goals), so she must be a lesbian. I mean, no one would be single at 50 by choice, amirite right ladies? And, as Lori Gottlieb is so eager to teach us, it's just so easy and personally fulfilling to settle for Mr. Okay to get that ring and keep away all charges that you are either a lesbian or too mean for any man to love. So, if she's not out trying to achieve marriage, it must be because she and her short hair are back home making it with another lady. Titillating!

Maria Miranda at Spangle Magazine summed up my feelings about this pretty well:

Every rumor I read about certain powerful women being gay just fuels my rage. If they're not prancing around in high heels and stylish cardigans, carrying a baby in each arm, they must hate men and enjoy only cunnilingus. The rumors about Elena Kagan are often backed up with snide comments about her appearance. These comments reinforce a system that oppresses women and forces them to conform to ways of behavior and dress that please men.

As Paul Campos pointed out when both Kagan and Sonia Sotomayor were rumored to be "too fat to serve":

For some men, the only thing more intolerable than the sight of a powerful woman is the sight of a powerful woman they don't want to sleep with.

Kagan's choice to, apparently, not sleep with a bunch of powerful men to get to the top of her chosen profession must, of course, mean she's a lesbian — just like Hillary Clinton, Condoleeza Rice, Janet Reno, Janet Napolitano and even Surgeon General Regina Benjamin before her.

Of course, it's not just the anti-LGBT forces that are latching onto Kagan's supposed sexuality. Jack Shafer and Andrew Sullivan are leading the Elena-Kagan-Likes-Women-And-That's-A-Good-Thing charge. First up, Sullivan (whose penchant for trafficking in poorly-sourced rumors about a powerful woman's ladyparts is already well established by his pursuit of the "truth" about Sarah Palin and her son Trig).

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. It's especially true with respect to Obama. He has, after all, told us that one of his criteria for a Supreme Court Justice is knowing what it feels like to be on the wrong side of legal discrimination. Well: does he view Kagan's possible life-experience as a gay woman relevant to this? Did Obama even ask about it? Are we ever going to know one way or the other? Does she have a spouse? Is this spouse going to be forced into the background in a way no heterosexual spouse ever would be?

Notice how the piece isn't really about whether she is gay, but how "possibly" being gay will affect her decisions about LGBT rights issues on the court. I mean, for one, the idea that her legal (or even political) reasoning on LGBT rights issues would be affected by her supposedly homosexuality isn't borne out in practice: plenty of supposedly outed politicians (from Larry Craig to Jim McCrery to state and local politicos and a legion of staffers) continue to work against LGBT equality for reasons that seem unclear to me but aren't to them. For two, plenty of people who are heterosexual believe, vote, rule and work for LGBT equality despite their sexual orientation. Either Sullivan believes that the other Supreme Court justices will all rule against LGBT equality based on their heterosexuality rather than, say, the way their religions or political views shape their understanding of the law — something he's never said — or he thinks that Kagan's supposed sexual experiences will shape her understanding of the law as it applies to LGBT people in a way unique to her as a supposed lesbian. Essentialist much?

Moreover, as Towelroad and others reported, Kagan said that there is no constitutional right to same sex marriage last year. Whether that was, as some legal scholars have suggested, a simple statement of current legal precedent or a hint as to her position on the issue is a matter of debate: however, it does add more than a little grey area to her supposedly hyper-gay-friendly stance on legal matters that boils down to opposition to DADT.

Richard Kim of The Nation points out that, when Sullivan himself was outed against his preference nearly a decade ago, he was all for the rights of public figures — even the ones that condemned other people's sex lives. Kagan has done no such thing, yet Sullivan thinks her potential future rulings for or against LGBT rights should make her sex life subject to public scrutiny despite the backlash everyone else from the Human Rights Campaign to PFLAG knows would follow. Kim wonders where Sullivan was during Robert's confirmation hearings.

Just once I'd like to see this double-standard-complicated in Kagan's case by the perception that she's in the closet-applied to straight white men. Tell me, Judge Roberts, about your heterosexual life experiences? How do you think your bountiful virility (or lack thereof?) will affect your opinions about privacy?

Of course that wouldn't happen: everyone knows that being white, male and straight gives one the default viewpoint of American society.

Kim, unlike Sullivan, Shafer and a host of other people, doesn't care who Kagan sleeps with both because she has chosen to keep some of her life private. Jack Shafer, however, just is hoping that she is — for political reasons, of course.

The reason I advocate the nomination of a qualified homosexual is this: Only by sending one through the meat grinder of Senate confirmation-as we have with Catholics, Jews, blacks, women, and a Latina before them-can we begin to purge identity politics from the court. (Yeah, we're probably still in a time when there must be "black" and "female" seats on the court, but give it time.) By nominating a qualified gay to the court, the president would create an environment in which-eventually, I hope-a nominee's sexual orientation is given the same shrug we give nominees' religion, gender, race, or state of residence, and the nation will be better for it.

Yes, he argues that Kagan should out herself (if she is actually a lesbian) for the good of the nation. Her supposed sexuality — about which she has deliberately chosen to remain silent — should be pilloried, mocked, questioned and made the focus of her life and her life's work. There's apparently nothing noble or anti-identity-politics about politely declining to have a private personal life, and nothing that will counter the idea that Americans are entitled to the intimate details of every aspect of a public person's life in declining to allow America into one's bedroom and personal struggles. Nope, the only way to make the media and the public stop paying attention to one's life is to make them pay others for access to it.

At least Shafer, unlike Sullivan, acknowledges that the rumors about Kagan's sexuality say more about the rumor-mongers than the nominee:

Kagan isn't the first high-profile single person whose sexual orientation has been the object of conjecture, probably because any single person over a certain age who doesn't actively signal his orientation freaks us out.

But rather than prescribing a healthy dose of respect for one's own privacy, he suggests the only way to combat that is to be more open than Kagan wishes to be. Because, really, she needs to stop freaking America out with her unwillingness to either shout that she's not a lesbian (which, given that the Administration already did that on her behalf, won't convince anyone) or admit that she is (which, as evidenced by the right-wing reactions to the rumors, won't stop many people from freaking out). The public, Schafer argues, has a right to know for its own comfort level.

Because, you see, society has these norms — about how women dress, how they look, how they act, what they're supposed to do in the work force and what they are supposed to want outside of the word force — and society doesn't want to think that some women might actually be happier working than raising a family, or single than in a bad relationship, or comfortable with how they look in short hair and pants. And we certainly don't want to think that you could spread rumors about a woman for all those things (and her apparent comfort with them) without hurting her feelings or causing her to react. I mean, she's supposed to care what people think about her and her personal life. It's what women do.

Why Do So Many People Think Elena Kagan Is Gay? [Mother Jones]
Is Supreme Court Nominee Elena Kagan Really a Lesbian? [Gawker]
White House Complains About CBS News Blog Post Saying That Possible Supreme Court Nominee Is Gay [Washington Post]
The Supremes And The Single Girl [Balkinization]
Mirandized: Kagan a Lez? Here's the Real Issue [Spangle Magazine]
An Unnatural Woman [Slate]
So Is She Gay? [Daily Dish]
Kagan: 'There is No Federal Constitutional Right to Same-Sex Marriage' [Towelroad]
Elena Kagan Is Not Gay [The Nation]
Elena Kagan 'Gay' Whisper Campaign Enrages Rights Groups [Huffington Post]
Shrinking White Men [The Guardian]
I Wish Elena Kagan Were an Uncloseted Lesbian [Slate]

Earlier: Women Too Stupid To Stay Thin Are Not Smart Enough For Supreme Court
White House Turns To Head Off More Regina Benjamin Rumors