I’m not asking whether it should be — pencil me in as a “no” on that — but whether it will. I don’t see how it can be avoided, especially with gay marriage on the Court’s radar screen in the not-too-distant future. Some social cons will object to a gay justice and will want the GOP to find out what’s up with Kagan; some gay rights activists will object to a closeted gay justice and will want the White House to come clean. As much as centrists on both sides will cringe at the thought of an “is she or isn’t she?” subplot at the hearings, it ain’t the center that’s driving this train in an election year. With noted “conservative of doubt” Andrew Sullivan already raising the alarm that The One is advancing “the cause of the closet,” how long can Team Barry hold out?
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. 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?
That’s the best argument for making this an issue. Per his own admission, The One’s a fan of “empathy” on the bench; to all appearances, Sotomayor’s “wise Latina” theory of jurisprudence was a feature for him, not a bug. If identity’s that important to judicial philosophy in the liberal imagination, then by Obama’s own standards, Kagan’s identity should be fair game. Problem is, as fun as it’d be to watch him squirm over this, to press him on it would jeopardize a moment when most of the right and left seem prepared to ignore the ambiguity about Kagan’s orientation and judge her on her qualifications. That seems like a good place for society to have reached; it ain’t “she’s here, she’s queer, get used to it,” but “she’s here, she may be queer, and it’s no big deal” ain’t beanbag. Do gay-rights supporters want to endanger that sentiment with an identity politics passion play at the hearings, replete with a Category Five media clusterfark?
Gibbs is taking a “none of your business” approach thus far. Libertarian-minded conservatives will, I trust, want to encourage him. The task for less libertarian-minded conservatives, I guess, is to decide how much they actually agree with Obama’s “empathy” theory of judging. If you think Kagan’s possible homosexuality will affect her vote on gay (or other) issues, even if she swears to judge cases purely on the legal merits, then you’re with The One. But please do explain why you think her orientation, rather than her liberalism, will be the determining factor. Because I’m pretty sure Breyer, Ginsburg, and Sotomayor are all straight, and I’m also pretty sure how they’ll vote if and when gay marriage finally reaches the Court.