James Joyner captures my thoughts on the recent silliness pretty well. Basically, nobody comes out of this looking good.
First, CBS. Frankly, the journalist in me finds it sort of offensive that they were willing to publish serial plagiarist Ben Domenech on any topic—some things really ought to earn you a lifetime ban from respectable outlets. In the specific instance, I think Domenech himself can probably be forgiven for believing—as a whole lot of people did—that Kagan was out, and saying so in a tossed-off blog post. But CBS is supposed to fact check these things—see whether Kagan herself has actually acknowledged anything of the sort in print—before running with potentially controversial claims. There’s no real excuse for this to have run in the first place.
But the White House response has been phenomenally stupid on a number of levels. They could simply have said that Kagan has never publicly discussed the details of her private life either way, which would have been enough to establish that the CBS story overreached. By going further and asserting that Kagan is straight—though in the absence of a verbatim quote, it’s possible that a spox really just flubbed an attempt to deny the “openly” part—they’ve made it actually newsworthy if the claim turns out to be false. Moreover, as many have noted, responding as though being called a lesbian constitutes a “charge” is a stupid goof in 2010.
The really ridiculous bit, though, is the insinuation that there’s some kind of right-wing “whisper campaign” to spread the “rumor” that Kagan is gay. Bollocks. The reason people in the Beltway or the legal academy thought Kagan was gay—in fact, was openly gay—is that there’s a huge community of Harvard alums and legal scholars who have, for years, always talked as though that was the case. And by this, I don’t mean they looked at her haircut and jumped to conclusions—I mean that it was as unremarkable (and unremarked upon) to hear a reference to Kagan and her girlfriend having been at such-and-such an event as it would be to hear that Antonin Scalia and his wife had been seated across the table. I guess it’s (just barely) conceivable that all these folks—not, for the most part, conservatives—somehow got it wildly wrong via some 80’s-sitcom type confusion about a platonic roommate or something. But to call it a “rumor” really gives the wrong impression, and to pretend that it’s some recent invention of conservatives is just completely false. There were a whole lot of very surprised liberal lawyers in DC last week.
Finally, while I of course agree with the general consensus that orientation is irrelevant to one’s judicial qualifications, there are two caveats. First, it’s clearly just true that some folks (myself included!) would consider it a nice milestone to have the first openly gay justice—just as many people were happy to see the first Hispanic justice confirmed. That’s not reason enough to out someone, certainly, but it’s not like it’s totally irrelevant politically. Second, while the mere fact of sexual preference is nobody’s business if a nominee prefers to keep it private, it’s hard to say the same about the identity of a nominee’s long term romantic partner. High-powered lawyers, after all, often date or marry people who are themselves powerful lawyers, executives, activists, and so on. This potentially raises questions about when and whether prospective justices would be required to recuse themselves from considering certain types of cases. So I’ve actually got to conclude—somewhat reluctantly, since it would surely be exploited by scumbags to launch unfair attacks—that if Kagan has a long-term partner, then if she’s being considered as a potential Supreme Court justice, the public would be legitimately entitled to know that person’s identity, at least.