The Borking Of Kagan

Will Saletan pens the most penetrating and persuasive critique of my question as to the emotional orientation of Elena Kagan. He puts it better than I, but his argument is essentially that the personal facts of a supreme court nominee can lead to unending and cruel and prejudiced exposure, in a manner that distorts the process and wounds the person. He reminds me of the religious inquisition of the agnostic Robert Bork. It is indeed vile. What was done to Clarence Thomas was, in my view, viler - although I remain convinced that Anita Hill was telling the truth. Will also reminds me of my own words on this matter nineteen years ago, when I witnessed the brutal outing of Dick Cheney's then-spokesman, Pete Williams, on the utterly fraudulent grounds that he was somehow homophobic, because he spoke for a defense secretary who ran a military where openly gay soldiers were banned. I remain proud of the little essay and stand by its core point. The fanatical persecution of a gay man who simply wanted to do his job, was barely a public figure at all, and was in any way out of the closet, appalled me. That this viciousness came from other gay men made it no less, and in some ways much more, despicable. And that this viciousness was in the service of an ideological agenda made it worse.

But here's why I think Will's point falters, and why my argument of twenty years ago is much weaker now. Since 1991, a revolution in attitudes has occurred. Gay couples are legally married in several states. Large majorities of people support ending the military ban on honest homosexuals and enacting some kind of legal relationship status for gay couples. In my home country, there are now over a dozen openly gay Tory members of parliament. In the circles of the Acela corridor, and legal academia, being gay is often a plus. Ten years ago, I wrote another essay noting this amazing change and asking whether the press - in completely benign and empirical ways - was still required to sustain what were in effect glass closets of people who were out in some spheres but wished to remain closeted to the wider public. Things had evolved in such a way that some journalists were required to write things that were not true or avoid things that were obviously true in order to uphold stigmas that no longer existed. The case of the recent Washington Post story illustrates this dilemma perfectly. The job of a writer is to tell the truth first of all.

Ten years later still, we now have a mass media in which no gate-keepers exist, and in which anyone with a Google search on Kagan will immediately retrieve what the public is already trying to find out in massive numbers. We also have countless openly gay men and women in public life. We have an open lesbian judging American Idol and an openly gay minister praying at the president's inauguration. We have a president who is rhetorically committed to gay dignity and inclusion.

We also have a president who has specifically argued that his prime criterion for selecting a nominee for the Supreme Court is biography, and a personal understanding of how the law impacts real human beings. We have the details of that biography laid out in excruciating detail in the New York Times. From a rare and inadvertent inquiry into Bork's agnosticism decades ago, we have now come to the NYT providing details of a young girls' bat mitzvah and teenage smoking. Did Kagan give permission for every aspect of her personal life to be splayed out in the pages of the paper of record? Do the journalists at the NYT feel awful for exposing her cigar habit or her softball games or her deep relationship with her father? Or do they regard these details as part of what the modern world demands, and indeed as a way to allow readers to make the very judgment the president himself has asked us to make: what is this person's life experience? I simply do not know how to measure a person's life experience if I have no idea if she has ever had an emotional life or even if she has always lived alone. We knew this even of David Souter. But we know nothing of this with respect to Ms Kagan.

Elena Kagan is a human being, with feelings and dignity and a right to choose how she presents herself to the world. But she is also now a very, very public figure, seeking a lifetime appointment, with extraordinary power, in a liberal administration from a liberal university, in the twenty-first century. We all accept that when we enter public life, we surrender certain things. I learned this the brutal way, being out in the mass media before I was in my mid-twenties, all but forced to acknowledge intimate details of my own health and sex life, pummeled for my religious faith or lack of it, analyzed in every personal way imaginable, exposed by right and left depending on the political uses of the time. I wouldn't wish that on anyone. It still stings. I have scar tissue where my heart used to be.

I am not seeking to expose anyone in this way at all, because I know at first hand how brutal it can be. I seek no cruelty at all. I want to know no details or specifics. But I do think a simple answer to a simple question about a core part of someone's identity should be possible. And I think a deliberate avoidance of this question is dangerous to public transparency and to the integrity of the process and potentially more invasive of someone's actual privacy in the long run than a simple, dignified statement that could get us past all of this now. And I think there is a real danger of treating emotional orientation as different from any other aspect of someone's personal life in a manner that is actually deeply complicit in prejudice and injustice. Doing so sustains stigmatization, which sustains discrimination, which perpetuates enormous and enduring human pain. Doing so is actually, in my view, simply wrong. Which is why I stand by my question and the raging debate that has ensued on this page.

But Will has persuaded me of one thing. I will say no more on this subject. I wish Ms Kagan all the best and hope the process is scrupulously fair to her. By all accounts she is a lovely person, a gregarious human being, a great persuader, and a judicial blank slate. I've asked one question I feel is legitimate and utterly without malice and I have received an answer. The answer is that I should not ask. I take it as a final one. I won't any more.

This question is now closed on this blog.