A Post I’d Rather Not Write

One topic I would prefer not to write about is the recent flap over whether Elena Kagan, apparently a front-runner for the next Supreme Court nomination, is an “out” lesbian. This is the kind of story we’d rather not touch with a stick. Personally, I couldn’t possibly care less about Kagan’s romantic life. So we’d like to avert our eyes from the controversy.
Unfortunately, it isn’t that simple. The story began when Ben Domenech, blogging for CBS News, observed, apparently innocently, that Kagan’s nomination would please the Democratic base because she would be the first openly gay Supreme Court nominee. This led the White House to denounce Domenech’s post as a rumor campaign, and to assert flatly that Kagan is not gay, let alone openly so. CBS eventually deleted Domenech’s blog post. But comments on Kagan’s sexual orientation didn’t start with Domenech; a number of gay and lesbian sites like “Queerty” had claimed Kagan as one of their own. Outside the Beltway has a good summary of the controversy.
Here is the problem: we live, thanks to the Left, in an era of identity politics. The common political syllogism runs, Mr. X is a member of group Y. Therefore he has political interests in common with other members of group Y and is entitled to certain benefits as a member of group Y. Worse, Democrats commonly hold that members of their constituent identity groups are obliged to favor political and judicial policies that advance the presumed interests of those groups. See, for example, the way they talk about Justice Thomas and Sarah Palin.
It’s actually worse than that: the liberals’ theory of jurisprudence holds that membership in favored or disfavored groups should dictate the extent of one’s legal rights. Thus, for example, Goodwin Liu argues that descendants of white people (not slaveholders, of whom there are insufficient numbers, but white people) should write reparations checks to descendants of slaves, no matter how rich those descendants may be today.
Homosexuals have become a significant component of the Democrats’ identity-based coalition, and left-wing gays have aggressively sought to advance their policy goals (i.e., to establish a constitutional right to gay marriage) through litigation. Litigation relating to the purported rights of homosexuals will undoubtedly come before the Court during the next appointed Justice’s tenure.
So, do the math: liberals think group identity is of overriding importance, generally trumping whatever views one might otherwise have formulated as an individual; homosexuals are a group recognized by liberals as having a special claim on our storehouse of “rights”; liberals commonly assert that a member of a politically favored group, like homosexuals, who doesn’t get with the program is a sell-out. And Elena Kagan, whatever else she may be, is indisputably a liberal.
Aren’t members of the Senate Judiciary Committee not just entitled, but probably obligated to question Ms. Kagan about whether she is a lesbian, and if so, whether she will be able to put aside these liberal doctrines and judge fairly in “homosexual rights” cases that may come before the court? I would be delighted to be convinced that I am wrong, but in today’s world of identity politics, I don’t see another answer to the question.
This conclusion, if it follows, is not due to some perverse, prurient interest in Ms. Kagan on the part of conservatives. No such interest exists. It is due, rather, to the corruption of identity group politics that has fueled the Left and the Democratic Party for decades. If the U.S. had stayed with the Founders’ vision of individual rights and limited government, and if the judiciary had remained the “least dangerous branch” by virtue of its seemingly-limited powers, these questions would never arise.
In the more or less ideal world envisioned by the Founders, anyone who asked about Kagan’s sexuality would get the only appropriate response–It’s none of your damn business. Unfortunately, that Rubicon was crossed a long time ago. In the era of group identity, group political interests and constant discoveries of new constitutional “rights,” which always inhere in politically-favored groups, Kagan’s sexual orientation has sadly become all too relevant.
PAUL adds: I agree with John’s logic. However, I still believe that Senators should not ask Ms. Kagan about her sexuality.
If Senators proceed with the inquiry that John describes, I see four possibilities: (1) she will decline to say whether she is a lesbian, (2) she will truthfully answer that she is not, (3) she falsely answer that she is not, or (4) she will say she is, but that it won’t influence her jurisprudence.
In scenario (1) nothing is gained — no knowledge is obtained and Kagan probably garners sympathy (she will have mine). In scenario (2) nothing is gained, except a very unappealing, and ultimately fruitless, probe into Kagan’s romantic life. In scenario (3) we get the same probe. This time, it might reveal facts that (given her testimony) would sink the nomination. But at terrible price — a re-play of the kind of nauseating inquiry Clarence Thomas had to endure.
In scenario (4), Kagan gives an answer that should not impair her nomination, and probably wouldn’t. Nothing changes unless, somehow, her sexuality causes her not to be confirmed. In that case, something has been lost.
I assume that, whatever her sexual orientation, Kagan will be a solid vote for the expansion of gay rights. I assume the same thing about anyone President Obama is likely to nominate. I also assume that no nominee, gay or straight, will disclose this tendency during confirmation hearings. That’s probably unfortunate, but it doesn’t justify another Clarence Thomas-style sideshow.


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