A whole lot of blogs have been asking the question: does it matter if Elena Kagan’s gay? It’s perhaps not going to be a popular answer, but I think it is, inevitably, yes.
Don’t get me wrong; I’m not trying to “out” her. To the extent Kagan herself finds the question of her sexuality intrusive, she obviously ought to have the privilege of declaring her own identity as a matter of public discussion. The White House has, after all, denied that she is gay. If she doesn’t want to talk about it, I don’t think she ought to be forced to. I think that pundits speculating about who she dates are kind of gross and prurient. I think to badger her with questions about it is completely out of line.
But that issue set aside, it matters, if she is prepared to identify as gay publicly. It matters not just because, as Silvana Naguib notes, she’d be the first openly gay Justice of the Supreme Court. It matters not just because the door to power would crack a little wider open for an entire swath of people. Because I don’t think Kagan owes anyone a role model.
No, I think it matters because I think the inclusion of someone who isn’t straight will make the Supreme Court stronger. Like I said yesterday, I was probably one of the very small minority of people out there who never considered the “Wise Latina” thing a gaffe on Sotomayor’s part, unless we were saying that it was an excess of honesty that made it a mistake.
Lawyers like to talk about law as an abstraction, and it would be wrong of me to claim it isn’t one. As I said yesterday, I like to think of law as a public conversation (a DISCOURSE, if you will) about the things that a society wants to do together, even if the outcome of that conversation is that we all decide to leave each other to our own devices. Because everyone comes to the table with different ideas, we try to assign judges an aspiration of impartiality, tell them to lift themselves outside of their experience. And to a degree, I think they manage it. But only to a degree. It seems to me that your sense of yourself, as framed by your experience, can’t simply be reasoned out of the equation. Who you are is part of how you reason, in my view.
Given that, it’s always more sense to me that we all be up-front about who we are and where we are coming from even as we engage in this supposedly abstract practice of law.
To lie about your standpoint, to make some kind of claim to superior reason, strikes me as a white man’s move. Put differently, one of the most dangerous privileges white men have in this culture is the ability imagine their perspective as belonging to some abstract, platonic ideal of a “reasonable person.” (That’s a law in-joke.) It’s to be able to imagine themselves as having access to the universal mode of reasoning. If you take that position, that what you’re doing is “impartial,” it allows you to paint everyone else as “partial,” and therefore illegitimate, when they admit that in fact, yes, their gender or their race or their sexuality or their disability has, in fact, influenced the way they see the world. This is what happens, for example, when white people construe themselves as “Real Americans,” who are “colourblind.” It’s a way of de-legitimizing perspectives from the get-go by claiming you have the ability to see outside your experience, when in fact, white men often have little cause to listen to people who fall outside the bounds of their narrative. They wrote the philosophy and ran the countries and sat on the benches, almost exclusively, until very recently. It’s rather rich of them to paint the continual dominance of their point of view as the triumph of “reason.”
I will not make any essentialist claims, of course, on behalf of the non-dominant perspectives. There’s no particular political agenda associated with being a lesbian or a woman or a person of colour, at least not at the brass tacks level on which most cases get decided. (At the last vagina-havers convention, I don’t think we agreed on a bankruptcy scheme, for example.) But the point is that to the extent that cases become hard cases, with difficult to parse facts and few easy answers, I can hardly see how one could justify having judges who so little resemble the population they are intended to govern.
This whole thing has been interesting purely from an observational stand point. I don’t understand the whole, they HAD to deny it otherwise the right wing would go crazy! Like they aren’t already? (By this I mean since Obama was elected)
There is near constant speculation in our popular culture as to who is gay/straight. It’s not a “good” thing but I also think people need t stop reacting to such speculation as if some huge insult has been laid at their feet.
Oh and of course I agree that diversity (in all forms) is desirable on the bench. Although I doubt Kagan would be the first homosexual to sit on the Court.
@bluebears – I feel like this:
“they HAD to [do X] otherwise the right wing would go crazy! Like they aren’t already?” characterizes the basic modus operandi of the Democratic party for the last decade at least.
Politically, I think her lesbianism would work to her advantage. No one with any relevance would seriously try to make her sexuality an issue and if they did I think they would quickly find that this country has come a long way. Also, it would create a rift between the anti-gay Republicans and the libertarian Republicans which would be fun to watch.
Maybe as a nation we are not ready to have gay people get married but neither, I strongly believe, do we support discrimination based on sexual orientation.
The White House should not have commented one way or the other on her sexuality–to deny it makes it seem like there is something shameful about being gay in the first place.
Nice post! I really like the distinction you make in the second and third paragraphs!
As a non-US based person, I find the way in which Kagan’s sexuality is THE issue rather disturbing.
PSoul, I agree with you about the possibility of Kagan being gay matters, having diversity on the bench should result in better judging all round.
In Australia we don’t have the same appointment process for judicial positions as the US, but I would have thought more considered responses about Kagan would be more forthcoming – not whether or not she dates someone with personal bits like hers, or not.
In Australia we had a High Court judge (he retired recently) who is homosexual – Justice Michael Kirby. Appointed to the HC in 1996, he previously sat on various judicial benches before the HC appointment, and in 1999 he came out – whisperings of his sexuality kept him out of other positions before his HC appointment.
Meanwhile Kirby had been with his partner for over 30 years.
Regardless of who Kagan dates/is in a relationship with, it should be up to her, in her own time or never, to let people know if she is or isn’t a lesbian. But it shouldn’t be the sole determinant of her capacity to sit on the Supreme Court.
I haven’t heard anything that gives me an opinion as to whether or not Kagan is actually a lesbian, but I worry that she is being called out as a lesbian because she does not conform to the patriarchal beauty standards to an “acceptable” degree. And that seems like a double shitty middle school level strategy for blocking her confirmation.
“To lie about your standpoint, to make some kind of claim to superior reason, strikes me as a white man’s move. Put differently, one of the most dangerous privileges white men have in this culture is the ability imagine their perspective as belonging to some abstract, platonic ideal of a ‘reasonable person.’”
Simply awesome.
Could y’all forward me an invitation to the vagina-havers convention? Much appreciated.
Ok, so I have to tell you all how pissed off I am about a thread on a friend’s fb. He made a joke about confusing Elana Kagan and Elia Kazan, the film director, which was mildly funny. But it provoked a number of comments about her looks. Really, people? Funny, I never saw anything like that for any male nominee. And these people probably consider themselves liberals. *grinds teeth*
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