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.