SCOTUSMarkWilson:Getty

[Re-posted from yesterday.]

The White House position:

Senior White House adviser David Axelrod told reporters earlier this week that he and President Obama agree. A nominee's sexuality "has no place in this process," he said. "It wasn't an avenue of inquiry on our part and it shouldn't be on anybody else's' part."

The president's initial statement, describing why he picked Kagan:

Elena has also spoken movingly about how her mother had grown up at a time when women had few opportunities to pursue their ambitions and took great joy in watching her daughter do so. Neither she, nor Elena’s father, lived to see this day.  But I think her mother would relish this moment.  I think she would relish -- as I do -- the prospect of three women taking their seat on the nation’s highest Court for the first time in history.  A Court that would be more inclusive, more representative, more reflective of us as a people than ever before.

Let's move this debate off Kagan entirely. That issue remains closed here. She's straight.

But, as a general principle, if taking account of gender is part of creating a Court "more inclusive, more representative and more reflective of Americans as a people than ever before" then why does sexual orientation "have no place" in the process of selection?

I should clarify my own view. I do not favor the use of racial/gender/sexual orientation/religion identity as an official criterion for picking a Justice (it cannot but be a human factor in assessing people's lives and characters and experiences, but that's different). I think the criteria should be judicial competence and excellence and a person who reflects the sitting president's judgment about what kind of Justice he or she prefers. But if gender is an active and legitimate category to consider, why is sexual orientation out of bounds of even inquiry?

Or let me put it this way. I find Axelrod's casual bracketing of sexual orientation as somehow different - and lesser - than gender to be offensive. I don't think it was meant to be, and I think it was said out of a legitimate concern to be fair to people's privacy. But if identity matters in selecting a Justice, and if that identity is obviously a way in which nominees really do understand the impact of the law (and discrimination) on ordinary lives, and if all this has been explicitly stated by the president as integral to his vision of the Supreme Court, then why is sexual orientation off the list?

Of all minority identities in this country, gay people are currently dead center in a formative period of jurisprudence. Having a member of the court right there as a gay person would do a huge amount to shift the court's understanding and conversation about these topics. There have been women before, and Jewish Americans before, but we have never had an openly gay Justice before. This has to matter if we are to believe the president's own words on the criteria for his selection. It's offensive, in my view, to insist it doesn't. I know this comes from a well-meaning place. And it may well be that the diffidence with respect to this issue is a function of Kagan and Obama not wanting to seem to treat the issue as some kind of "charge" or negative. But we live in the world we live in. And they really should have known this. At this level of public scrutiny, the goal must be total candor and transparency from the get-go. There cannot be anything like code or winks or nods.

Total transparency matters, even if it does make the lives of public officials more difficult. It matters particularly now because in the current populist climate the last thing anyone should want is a nominee whose successful confirmation could subsequently be described as a function of some kind of deception.

In the paranoid mindset of the populist far right, it's enough for a nominee to be appointed as a blank slate within a coterie of Ivy League cultural elitists. But to seem to "sneak" a gay Justice on the court without being totally transparent about it would pour gasoline on this populist culture war fire. This does not apply to Kagan. But it could apply in future and we should try and figure out what lessons to learn from his confused kerfuffle. One of them is simply candor.

And less fear, please.

(Photo: Mark Wilson/Getty.)

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