The Kagan Closet

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After all of the whispering, here at last is some reporting that Elana Kagan is not gay.

I'm frankly baffled that so many on the left were eager to put a discussion of Kagan's sexuality off limits. Either a nominee's biography and identity are germane to judicial outlook or they are not. These qualities were critical to evaluating the nomination of Sonia Sotomayor, the bootstrapping, Bronx-raised, "wise Latina" now sitting on the nation's highest court. Her nomination battle was, in large part, an affirmation that life experience does frame judicial outlook in critical ways. Her defenders pointed out that even arch conservative justice Sam Alito copped to this in his hearing: "When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background," Alito said. "I do take that into account."

So why were we comfortable acknowledging the historical significance of appointing the first Hispanic to the Supreme Court? But an honest discussion of whether Kagan represented a similarly historic appointment made people queasy?

Because she was alleged to be closeted? I'm sorry. Supreme Court justices are empowered to make binding decisions about the personal lives of millions of Americans. The court recently overturned state prohibitions on sodomy, and will soon will render a verdict on the constitutionality of gay marriage. It is surely in the public interest to know whether a nominee is herself gay. Moreover, being closeted is not simply a question of personal privacy. As we've seen time and again -- chiefly among closeted gay men -- the inability to reconcile one's private sexual identity with one's outward life can result in cruel behavior in the public sphere. Look no further than the case of anti-gay crusader George Rekers, a cofounder of the Family Research Council, who was just outted after European jaunt with his "rentboy." This much is clear: Self loathing is antithetical to judicial temperament.

What troubles me about Elana Kagan is not her ambiguous sexuality. It's the closeted nature of her entire life, private and professional. This is a nominee with an elite pedigree, no question. But what does she actually believe? Nobody seems to know.

Inscrutability in high court nominees is nothing new, of course. John Roberts successfully jockeyed for a seat on the high court while keeping his reactionary ideology sufficiently under wraps that he could not be Borked come confirmation time. (The Federalist Society has played a key role as a conservative legal vetting machine, offering members whose views are publicly opaque a hard-right seal of approval.)

But Kagan has taken the game to a new level, turning ideological stealth into a lifestyle. A top Washington lawyer calls her "extraordinarily-almost artistically-careful. I don't know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade."

Kagan rose to the top ranks of Ivy League academia and the executive-branch seemingly without weighing in on, or arguing with her friends about, any of the meaty, controversial legal issues of our time. It's shocking to me that anyone could become dean of Harvard Law school without publishing more than five scholarly articles. (Her top competitors for this nomination had dozens, even hundreds). But Kagan did.

And after a lifetime of assiduously avoiding taking hard stances, she's suddenly going to be thrust into a position where all she does is make decisions that affect all of our lives. That's more than curious. That's perverse.

Here's hoping Kagan's confirmation hearings can coax her judicial philosophy out of the closet. The Senate owes us that much.