Sexual Politics of Nominating a Supreme Court Justice

Beyond the gossip, what does it mean?

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The controversy over a blogger's assertion that Supreme Court front-runner candidate Elena Kagan might be gay is one of those unfortunate intersections of politics and gossip. But, irrespective of the rumor and the blogger's now-redacted reporting of it, what does this flap tell us about the sexual politics of nominating a justice to the most powerful court in the U.S.? Kagan is no fringe lefty, after all--her conservative leanings on some issues have inspired a liberal backlash against her presence on the short-list. In the hyper-politicized world of Supreme Court nominations, what does it mean that we're even discussing a potential nominee's sexuality? Why does it matter?

  • Groups Exploit Sexuality As Political Tool  The Atlantic's Marc Ambinder explored, before Thursday's controversy, the "baffling whisper campaign among both gay rights activists and social conservatives" about Kagan's sexuality. "It's hard to have a rational discussion in an atmosphere dominated by shrill and self-interested voices." He writes of Kagan and other high-profile women who have been similarly labeled:
They're victims, not because being gay labeled bad, falsely or otherwise, is shameful, but because the intention behind the labeling is often nefarious and stereotypical. Gay groups want to appropriate and use these public figures to advance a cause, and conservatives, many of them, consider homosexuality and gender non-conformity to be fundamental character flaws.
  • White House Unintentionally Furthering Homophobic Assumptions  Gawker's Alex Pareene asks, "Why is the White House treating lesbian rumors like allegations of vampiric necrophilia?" He writes, "If Kagan is gay, the White House shouldn't be forcefully demanding that people stop calling her gay. If she isn't gay, they still shouldn't be forcefully demanding corrections like something incredibly untoward and terrible was suggested. Wouldn't it be much nicer and more progressive to politely ask for a correction and say it's no biggie?"
  • Is the Closet Disappearing?  Politico's Ben Smith muses, "An unexpected consequence of the broad tolerance of gays and lesbians is how little space there is left in the closet." Kagan "has the misfortune of taking the stage just as that line is dissolving. ... It's a transitional moment in public life, and a mildly uncomfortable public moment results, but it's hard to see much more going on here."
  • GOP No Longer Targeting Sexuality  A number of pundits noted that Republicans have, so far, largely shrugged this off. Gawker's Alex Pareene writes, "ironically, the GOP doesn't actually seem interested in going after a nominee for their sexuality, because stuff like being a Socialist or whatever is playing a lot better." Politico's Ben Smith nods, "Republicans on the Hill decided last year, when two open lesbians were considered for the court, that they wouldn't make an issue of it. And that's a good political decision: Most Americans don't think sexual orientation should be a factor in hiring."
  • Shows Brutality of SCOTUS Battles  The Washington Post's Howard Kurtz sighs, "The flare-up underscores how quickly the battle over a Supreme Court nominee -- or even a potential nominee -- can turn searingly personal." Kurtz wrote earlier of the media's reticence to dive into speculation over Kagan's sexuality, "maybe because a candidate's sexual orientation is none of our business?"
This article is from the archive of our partner The Wire.