Elena Kagan, Woman of Mystery: What Do We Deserve to Know?

First, my very serious answer is that we deserve to know a whole heck of a lot more about her judicial philosophy, etc. than we already know. On this, I’m 100% on board with ballgame. (I’m on board with Greenwald, too, and you really should read his analysis of why Diane Wood was the better choice. But only ballgame gives you the link to serious batshittery á là Ann Althouse.) Compared to Wood’s robust record, we have only a teensy bouquet of tealeaves from Kagan. Leaving aside my usual “I’m no lawyer” disclaimer, I don’t think SCOTUS members should be picked that way. Tarot might serve us better. Or if we’re talking bouquets: I know a source of four-leaf clovers down by the river. Yes, they’re mutants, but they might be as informative as anything on Kagan’s judicial philosophy.

My less serious answer? I don’t really think we need or deserve to know Kagan’s sexual orientation. We do, however, have a right to understand how she’d approach DADT and the approaching Olsen/Boies juggernaut on gay marriage. I do not care if Kagan is as boringly straight as I – or if she keeps a harem of 30 lovely ladies – or has a long-term partner and a couple of dogs. I only care about where she stands on questions likely to come before the court. Yes, the political = the personal and all that jazz, but my goodness! People deserve some privacy, especially when the Judgie McJudgers of America are going to be quick to condemn a public figure’s personal life.

Greenwald makes the compelling point that her sexual orientation is not, primarily, about her sexual desires, tastes, or potential peccadilloes. It’s about who she is. It’s about her identity. And that identity may have an impact on how she’d rule on, say, marriage equality.

I agree that it’s important to separate these things out analytically. Even my straight little self might have fetishes involving marshmallows, silk scarves, and cat costumes. (I do, in fact, own all three of these items. Make of that what you will.) Those hypothetical fetishes have nothing to do with the fact that I basically identify as straight. Well, maybe I’d lean more toward large, broad-shouldered dog costumes, were I lesbian. Or Marlene Dietrich get-ups. But really! Sexual orientation is only very loosely coupled to the sexual acts people enjoy. (See also figleaf on this.)

So I agree with Glenn up to that point. Where we part ways is on the significance of sexual orientation as a component of one’s identity. To take a less loaded (?!?) category: I am a mother. I identify as a mother. In many social situations, that makes my life simpler. There’s no one asking when I plan to have kids. Other times, someone’s demanding to know if I was the mom of the small person playing with his penis on the soccer field, and, um, yes, that was indeed me. (A long, long time ago, I hasten to add – just in case the kids ever read this!)

But there are also scenarios where being a mother is stigmatized. Applying for high-powered jobs? Better make sure your wallet won’t flip open to that photo of your adorable nine-month-old. Hmm, you might want to leave your wedding ring home, too. Your future employer doesn’t have a right to know that you have sprouts at home that might render you less than a 24/7 salaried slave. Maybe you don’t want to risk sabotaging your chances before you’ve even answered the first interview question.

Of course, compared to being a mama, being non-hetero is considerably riskier in the ordinary job market, and I would imagine the Supremes take that risk and put it on steroids. So why should Kagan come under the gun to disclose a potentially stigmatized identity? Why shouldn’t she expect to be judged by her merits, instead of on who she tends to love?

More pointedly, to Andrew and Glenn: Why shouldn’t Kagan be able to pick and choose her battles? (Personally, I’d like to know much more about what she hasn’t helped dismantle the unitary executive.) Why do we evem assume there is a battle to be fought? Yes, there are rumors, but all this media attention is only fanning them. They might be plain wrong. After all, Kagan might be straight, bi, or asexual – or just very, very busy at work.

I have the feeling Andrew Sullivan is jonesing for a high-powered pol to come busting out of the closet and break down a few more doors. Sure, it would be awesomest to have an out-and-proud Justice. But that person – whoever she or he will be – gets to decide. Not Andrew. Not Glenn. Not your humble pundit, Sungold.

Honestly, I can see just two scenarios where I’d warm to Kagan being questioned about her orientation in full Senate hearings:

1) The nominee gets to flip around the questions and direct them back at some of the oafs posing them.

I personally would like to see David Vitter grilled on his orientation. “How long have you been straight? What evidence is there fpr your 100% straightness? How would you categorize your alleged diaper fetish? Doesn’t that sort of kink render you queer?”

“Senator Craig, we all know that you’re on record as being unimpeachably straight. Can you demonstrate your famous wide stance and explain how it embodies your heteronormative manhood? Also, isn’t it messy to pee that way? Do you consider that a bug or a feature?”

Unforntuately, neither of these illustrious lawmakers sit on the Senate Judiciary Committee. (Craig is now out of office, such luck!) And I just don’t have the heart to pick on Lindsey Graham, who does sit on that committee, and who hasn’t persecuted gays from the security of his (alleged) closet. Heck, Daisy can hardly stand to needle Graham, and she lives practically down the road from the man.

2) Kagan proudly embraces a lesbian identity – and America yawns.

The folks who froth at the mouth at the mention of “them homos” – why, they’ve largely gone the way of the Edsel, and of the people who knew firsthand what the Edsel was. Sure, there are still lots of haters, but their ranks are thinning, especially among the younger crowd.

I’m afraid we’re not yet at the point when a declaration of proud out-ness will leave Americans reaching for the snooze alarm. But we’re within a decade or two of it, I think. I hope James Dobson and his cronies will still be around to watch their lifework melting, melting, melting.

Still, even now I find myself fantasizing: What if Kagan is lesbian? What if she made a public announcement to that end? And what if neither Glenn Beck nor Bill O’Reilly is able to froth up a mob mentality? What if America were to say, “Oh, that’s interesting,” (in the vaguely disparaging way that phrase can be used in the Upper Midwest), and then we all turned the channel?

Because if a post is about sexuality – especially female sexuality – there’s gotta be a flower from my garden! This is a columbine I grew from seed last year. This is its first year flowering. You see that leaf miners have besieged this plant, but it’ll probably muddle through just fine.

I am inordinately pleased with how this perennial turned out – from seed!