Kagan's friends: No, she's not gay

They came clean to prevent it from becoming a distraction, which is a polite way of saying they wanted to protect her from being bullied into talking about it by identity-politics obsessives of the far left and far right. With the Trig Truther-in-chief donning his Sherlock Holmes hat for another endless round of Just Asking Questions, I can’t say I blame them.

“I’ve known her for most of her adult life and I know she’s straight,” said Sarah Walzer, Kagan’s roommate in law school and a close friend since then. “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. 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.”…

Another friend, former New York Governor Eliot Spitzer, a member of Kagan’s social circle at Princeton University, wanted to make the same point as Walzer. “I did not go out with her, but other guys did,” he said in an email Tuesday night. “I don’t think it is my place to say more.”…

Walzer recalled “discussion about who she might be interested in – the usual girl talk stuff– talk about how to get his attention.”

This was “less along the lines of how to wear your hair,” Walzer said, than how to avoid intimidating men with an intellect and confidence that weren’t always seen as attractive traits.

“It’s an ongoing challenge for very smart women – there are not very many men who would choose women who are smarter than they are,” said Walzer.

So there you go. There are two arguments, as I understand it, for why she should be forced to answer this question. One: Because confirmation hearings are all about “empathy and personal stories,” normally private matters like orientation shouldn’t remain private. (To my surprise, InstaGlenn evidently agrees with this.) We need to know which way Kagan tilts, in other words, to get a sense of whether she’ll be more sympathetic to, say, gay victims of discrimination. Why we need to know that is utterly unclear to me, though, since it’s a mortal lock that if Kagan had come out as gay and then been asked about having extra empathy for homosexuals, she’d swear up and down in the name of impartiality that she didn’t. What then? Call her a liar who’s secretly biased towards gays? Vote against her because you’re “pretty sure” she’s biased even though she adamantly insists that she isn’t? What’s the point of having a hearing if you’re only going to ignore her answers? Also unclear to me is why anyone would want to encourage the treacly biography-based “personal stories” model of confirmation by opening orientation up to inquiry. Is there not enough case law to talk about? No constitutional nuances to, say, ObamaCare worth exploring instead?

The other argument is that orientation isn’t really a “private matter.” Sexuality is a private matter and must never be broached (i.e. “who have you slept with?”) but orientation is a matter of identity, which, in identity-politics America, is always on the table. Laying aside the fact that the conceptual divide between the two is blurry (the question “what turns you on?” touches on each), if orientation is necessarily germane to policy decisions, why not start every congressional or presidential debate with the moderator asking the candidates if they’re gay — or, to take an example closer to home, if they’re atheist? (Granted, unlike orientation, religion or irreligion is a choice, but good luck convincing someone who’s devout that their faith or skepticism isn’t integral to their identity.) There are whole clauses of the Constitution devoted to the idea that religious identity can’t be used as a formal qualification for office, even though elected legislators are theoretically freer to let their “worldview” affect their judgments than judges are. Kagan’s inquisitors are insisting, essentially, that there is a “sexual identity” test for office, with the happy caveat that there’s no way to fail the test — unless you refuse to provide some answer. Why should there be a test at all?