Julian Sanchez header image 2

photos by Lara Shipley

The Kagan Kerfuffle

April 20th, 2010 · 25 Comments

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.

Tags: Horse Race Politics · Journalism & the Media · Law



25 responses so far ↓

  • 1 Anderson // Apr 20, 2010 at 5:11 pm

    I’m a little puzzled why she wouldn’t be out already if she were gay; her career thus far doesn’t seem to’ve been such that it would’ve been a handicap, unless she’s been thinking all along, “gotta get on the Supreme Court one day!”

    The only thing politically worse for Obama than nominating an openly gay lawyer for the SCOTUS, would be nominating a gay lawyer whom they deny is gay. Maybe we’ll get Dianne Wood after all.

  • 2 Julian Sanchez // Apr 20, 2010 at 5:41 pm

    I would be very, very surprised if Elena Kagan has not had a Supreme Court nomination in mind as a possibility for a long time.

  • 3 Anderson // Apr 20, 2010 at 5:47 pm

    Sure, but I was being facetious. In 2010, or in 2000, or 1990, no one could possibly be confirmed as an associate justice without the fact of her gay relationship becoming known. (Unless Souter did indeed slip one by us.)

    If Kagan were actually concealing her relationship, which I do not say that she is, that would actually suggest such *poor* judgment that I would wonder about her fitness for the Court.

  • 4 Julian Sanchez // Apr 20, 2010 at 6:07 pm

    Well, that’s the thing. My understanding is that, while Kagan is circumspect about her private life when talking to media, it’s not exactly “concealed.” Hence my hypothesis that someone in WH communications just screwed up.

  • 5 mike farmer // Apr 21, 2010 at 10:16 am

    This is a test to determine where society’ at with this issue. If it becomes a national whisper campaign, a denial reaction from her supporters which reveals underlying unresolved issues, or a strong reaction against homosexuality, we’ll know there hasn’t been much growth. The only way to deal with this maturely is to stick with her qualifications and ability to do the job.

  • 6 The Kagan “Rumor” – The Daily Dish | By Andrew Sullivan « Firesaw // Apr 21, 2010 at 11:19 am

    […] Sanchez has a judicious post on last week’s commotion regarding Elena Kagan’s sexual orientation. Like Julian, I […]

  • 7 William Quill // Apr 21, 2010 at 12:52 pm

    I tend to think that in 2010, those seeking office should be open about their sexuality. Not because it would help gay rights to have a higher presence, but because it says something about someone’s character that while some are putting themselves out on the line by being openly gay, and while it is going through the courts, it seems a little cowardly to insist that it is inaccurate to be called gay. It’s like in Britain when the candidate for leader of the Lib Dems in 2006, Simon Hughes, denied rumours he was gay, then had to backtrack and say he was bisexual. Given how relatively mainstream being gay is becoming, denial seems a bit much, even if in her case, or Hughes’, that back when they started their career it made sense. I don’t mean they should be out there with the issue, by all means go with a Peter Mandelson, “Yes, I am, but can we please not talk about it” approach.

    But if Souter was and didn’t tell us, which I think he might have been, that’d be grand. I don’t think anyone has an obligation to raise the topic and come out. It’s the denying it that bothers me, when it’s clearly acknowledged on the law circuit.

  • 8 PG // Apr 21, 2010 at 1:17 pm

    From what I’ve heard from folks in the NH legal circuit, Souter isn’t gay; he’s dated women and finds them attractive, but genuinely seems to like being a bachelor.

  • 9 Monica // Apr 21, 2010 at 1:40 pm

    CBS probably doesn’t fact-check. That’s the reporters’ job.

  • 10 Julian Sanchez // Apr 21, 2010 at 2:19 pm

    That might make a certain amount of sense when we’re talking about staff reporters, but it’s irresponsible when they’re pulling in content from outside blogs.

  • 11 jre // Apr 21, 2010 at 5:08 pm

    One is compelled to note that Domenech himself has yet to reveal the identity of his longtime box turtle.

  • 12 Anderson // Apr 21, 2010 at 7:22 pm

    From what I’ve heard from folks in the NH legal circuit, Souter isn’t gay; he’s dated women and finds them attractive, but genuinely seems to like being a bachelor.

    Hey, then he really *was* the smartest justice on the bench!

  • 13 Nimed // Apr 21, 2010 at 9:44 pm

    Shamelessly off-topic:

    Jesus Sanchez, the ripples generated of the “epistemic closure” post are still getting more intense. Have you seen Jim Menzi’s post at NRO?

  • 14 mike farmer // Apr 22, 2010 at 8:58 am

    ” the ripples generated of the “epistemic closure” post are still getting more intense. ”

    On intellectuals have such an erogenous zone.

  • 15 mike farmer // Apr 22, 2010 at 8:58 am


  • 16 DivisionByZero // Apr 23, 2010 at 1:14 pm

    Wow. I missed this one. I can’t say I’m sorry to have missed it either. What idiocy. I can’t believe this kind of stupidity can even happen these days. Sigh.

  • 17 OttoDog // May 11, 2010 at 12:09 am

    While extremely true that sexual orientation shouldn’t affect one’s ability to dispense justice, the unwillingness to be open about it, while understandable in an earlier time, doesn’t bode well for Kagan. In 1995, she herself called for the Senate to “Bork” EVERY nominee, and for every nominee to answer ALL questions openly and truthfully, lest the nomination process become a “vacuous” exercise.

  • 18 kipp // May 12, 2010 at 1:32 am

    So ummm, given recent events – what’s the status of your received wisdom that Kagan is gay? We haven’t seen a direct denial from Kagan herself, but friends are being quoted recalling heterosexual behavior on her part and claiming she’s straight. Elaborate smokescreen – or were you wrong about her?

  • 19 Drasties - Dutch on the World - World on the Dutch // May 19, 2010 at 9:59 pm

    […] infamous CBS post mistakenly stating that Kagan is “openly gay” — something which a slew of Good Liberals at Harvard also long believed — the furious reactions have been extremely eye-opening about how many people continue to […]

  • 20 gaylib // May 24, 2010 at 9:53 am

    When have we EVER been wrong about someone the LGBT community thinks is gay? Just ask Mike Rogers how many times he’s been called a rumor monger only to be proven right time after time. Then there’s Ricky Martin, Ellen, Martina Navratilova–I could go on forever. Hell there was even a time when the whole world tried to pretend Liberace was straight. Once again the straight world–liberal and conservative– is using us as a club to bash each over the head with. And apparently Kagan is just selfish enough to let them do it.

  • 21 In Which Queer Theory First Appears on This Blog « Penn Political Review // Sep 7, 2010 at 4:36 pm

    […] DeLong, who opined that “The dominant view is that Elena Kagan is not a lesbian,” to Julian Sanchez, who contradictorily said that “it was as unremarkable (and unremarked upon) to hear a […]

  • 22 Baby PlayYard Review // Sep 4, 2011 at 6:15 pm

    Thank you for sharing superb informations. Your web-site is so cool. I’m impressed by the details that youˇve on this web site. It reveals how nicely you understand this subject. Bookmarked this website page, will come back for extra articles. You, my friend, ROCK! I found just the info I already searched everywhere and just couldn’t come across. What a perfect web-site.

  • 23 プロペシア通販 // Sep 24, 2011 at 12:37 am

    thanksan interesting blog

  • 24 月がやたら大きい // Feb 4, 2013 at 10:42 pm


  • 25 My great Wordpress blog | In Which Queer Theory First Appears on This Blog // Jul 2, 2014 at 3:47 pm

    […] DeLong, who opined that “The dominant view is that Elena Kagan is not a lesbian,” to Julian Sanchez, who contradictorily said that “it was as unremarkable (and unremarked upon) to hear a […]