Elena Kagan

In objecting to Andrew Sullivan’s argument that asking about sexual orientation is completely innocuous and legitimate, Kevin Drum offers one of the most extreme examples yet of this well-intentioned though harmful confusion, which I had really thought (but no longer do) had been left behind in the 1980s (which is why classic 1980s closet defender Ed Koch is now also advocating it).  Kevin wrote:

I get why Andrew feels this way. And if that really were the only thing off the table, he’d have a point.  But here’s a short sample of other questions that are generally off limits when you’re interviewing public figures:

* So, have you ever had an affair?

* Do you masturbate when your wife isn’t around?

* Have you ever had a three-way?

* Do you download a lot of porn from the internet? Or do you prefer buying it old school on the newsstand?

* I think Asian guys are really hot. How about you?

Notice a trend? They’re all related to your sex life. And they’re all generally off limits unless (a) you’ve put it on the table yourself, (b) there’s a specific reason to ask about it, or (c) you’re part of the gossip circuit where nothing is off limits in the first place. I mean, this is common sense. If you’re interviewing Ricky Martin or Silvio Berlusconi, that’s one thing. If you’re interviewing someone who’s obviously eager to talk about their sex life, go to town. But if you’re interviewing a Supreme Court justice or the CEO of Goldman Sachs, you just don’t bring this stuff up. Come on.

I find it truly unfathomable that people still think this way.  As Sullivan says:  this “could only be written by a straight person” — and not just any straight person, but one who does not really believe their rhetoric about gayness being a value-neutral attribute.

Kevin has written before about the fact that he is married and that his spouse is female (“My wife, Marian, is a systems analyst in the MIS department at Lantronix.  We’ve been married since 1991″).  When he wrote that, or when he introduces his wife, does he actually think that he’s revealing things about his “sex life” — let alone things on par with:  ”Do you masturbate when your wife isn’t around?” or “Have you ever had a three-way”?  To ask the question is to illustrate how inane is the suggestion.  At most, one knows from Kevin’s revelation that he is heterosexual, but not anything about his “sex life” — i.e., how many times a week does he have sex, how many partners does he have, what positions does he most enjoy, what type of women does he find attractive, etc. etc.?

Identically, if an individual introduces their same-sex spouse, or self-identifies or is identified as being ”gay” or “lesbian,” are you actually learning anything about their “sex life”?  No.  I’ve written before about the way the Defense of Marriage Act denies my right to have my same-sex partner, a Brazilian national, obtain the same immigration benefits as opposite-sex spouses of American citizens.  When doing so, did I reveal anything about my “sex life”?  Of course not — at least no more so than when someone like Kevin reveals that he’s “been married to Marian for 18 years.”

The fact that someone would equate “are you gay?” to “do you download a lot of porn from the internet?” is astonishing to me.  The latter question really is about someone’s “sex life,” while the former is about who they are.  The premise that being gay is about one’s “sex life” has long been the foundation of the dictate that gay people remain closeted (we don’t need to have your “sex lives” rubbed in our faces; keep that to yourself).  I don’t mean to single out Kevin here; the point he’s making — being gay is about your “sex life” and thus should be deemed off-limits unless the person voluntarily raises it — has been repeated over and over during the last month by countless people who fancy themselves quite progressive on gay issues. 

Indeed, the very notion that it is “outrageous” or “despicable” to inquire into a public figure’s sexual orientation — adjectives I heard repeatedly applied to those raising questions about Kagan — is completely inconsistent with the belief that sexual orientation is value-neutral.   If being straight and gay are precise moral equivalents, then what possible harm can come from asking someone, especially one who seeks high political office:  ”are you gay?”  If one really believes that they are equivalent, then that question would be no different than asking someone where they grew up, whether they are married, or how many children they have.  That’s what made the White House’s response to the initial claims that Kagan was gay so revealing and infuriating:   by angrily rejecting those claims as “false charges,” they were — as Alex Pareene put it — “treating lesbian rumors like allegations of vampiric necrophilia.”

Sexual orientation is not about one’s ”sex life,” at least not primarily, but instead is a key part of one’s identity.  Along with a whole variety of other factors (race, socioeconomic background, religion, gender, geographic origin, ethnic background), it shapes one’s experiences, perceptions, and relationship to the world.  As is true for all of those other attributes, there is vast heterogeniety within one’s sexual orientation; there’s as much diversity among gay people as there is among, say, Christians or Latinos or women or heterosexuals.  But there’s no doubt that it is a very substantial factor in one’s life experiences and understanding of the world.  

It’s ironic indeed that so many progressives — who spent months during Sonia Sotomayor’s confirmation process insisting that one’s life experiences (growing up as a poor Puerto Rican in the South Bronx) play a crucial role in how one understands the claims of litigants — are now demanding that sexual orientation be permitted to be kept hidden as though it’s completely irrelevant to one’s perspective.  If there’s nothing whatsoever wrong with being gay, why the double standard?  Just as Sotomayor’s background would undoubtedly affect her ability to understand (or “empathize” with) claims of discrimination or other forms of oppression, wouldn’t the same be true of a judge’s growing up gay — or choosing to remain closeted?

Those who object to the assumption that any unmarried woman must be a lesbian if she’s middle-aged and with a successful career have a valid point, as do those who argue that women are subjected to greater scrutiny over their personal lives than men are.  But those are separate questions.  If being gay or straight are complete moral equivalents, then there can’t possibly be anything wrong with asking if someone is gay — no more so than asking if one is married or asking about someone’s religion.  And those who want to hold themselves out as enlightened progressives on this topic should really stop acting as though “I am gay” is the equivalent of “let me tell you the sexual positions I most enjoy” — or that asking ”is she gay?” is the same as asking ”has she ever had a three-way”?  To see the two as comparable reveals the presence of some extremely misguided beliefs that such people would likely be eager to deny that they hold.

UPDATE:  Regarding the claim of several commenters that sexual orientation is a “private matter,” that it’s “nobody’s business,” etc., two points to make about that,  even though it’s not really responsive to the argument I’m making here:

(1) When someone seeks political power, they give up certain aspects of their privacy.  The more political power one seeks, the more privacy they give up.  Even though a person’s finances are generally private and “none of anyone’s business,” Kagan was just compelled to file detailed disclosure statements describing all aspects of her personal finances.  That’s how it should be:  the public has the right to know about people who seek substantial political power, so the mere fact that X is typically considered “private” for a private figure does not mean it’s off-limits for a political official.

(2) If Kagan were married to a male, but refused to disclose any information about her husband (including even his identity, what he did for a living, etc.), would that be OK on the ground that it’s her “private life” and “nobody’s business”?  Would anyone ever argue that was the case?  What’s the difference?

Yesterday, a similar pattern emerged.  In 2005, two Denver residents were removed from a Bush campaign event solely due to a bumper sticker on their car which read:  ”No More Blood for Oil.”  They sued, alleging their First Amendment rights had been violated, but the lower court dismissed the case and the appeals court upheld the dismissal.  The Supreme Court yesterday refused to review that dismissal, but in a fairly unusual written opinion dissenting from that refusal, Ginsburg — joined by Sotomayor — argued that these ejections constituted a clear violation of these citizens’ First Amendment rights which the Court should adjudicate.  She wrote:  “ejecting them for holding discordant views could only have been a reprisal for the expression conveyed by the bumper sticker.”  Kagan, again, refused to join those two Justices, siding instead with the conservative bloc and Breyer in voting to refuse the case.

Caution is warranted against reading too much into Kagan’s actions, particularly the latter one.  There are multiple factors which the Court must consider in deciding which cases to take, and a refusal to review a case does not denote agreement with the outcome in the lower court (of the two decisions, Kagan’s refusal to stay the execution is more revealing).  Moreover, in both cases, the outcome would not have changed had Kagan joined Ginsburg and Sotomayor, so it’s possible that her joining with the majority was merely some sort of strategic calculation to curry favor early on.  Still, these two decisions not to join Ginsburg and Sotomayor are substantive ones, and are at least worth noting as very preliminary signs of Kagan’s approach on the Court.

* * * * *

As for the Obama administration’s defense in court of both The Defense of Marriage Act and Don’t Ask/Don’t Tell, as well as the President’s generally anemic approach to gay issues, my views are roughly the same as those expressed here by Andrew Sullivan.  I intend to write more in the next few days about the contours and limits of the DOJ’s duty to defend the constitutionality of duly enacted statutes even where the President purports to disagree with those laws. 

First, this new Washington Post article analyzes the likely impact of Kagan and bears this headline on the Post‘s main webpage:  ”Court ideology unlikely to shift.”  The article itself similarly predicts that “her confirmation is considered unlikely to immediately shift the court’s ideology.”  But then this sentence appears:

Although she is expected to fit comfortably within the liberal wing of the court, she does not seem to be as liberal as Stevens was during his final years on the bench.

Doesn’t that negate, or at least strongly undermine, the article’s principal claim that she will likely have no ideological effect on the Court?  If it’s true that she’ll be less ”liberal” than Stevens — which was a leading objection for the start for those who urged Obama not to select her — then doesn’t that mean, by definition, that she will move the Court to the Right?  Unless we’re still indulging this fantasy that Kagan — through the sheer force of her personality and supernatural skills of conciliation — will ascend into the Court and begin magically hypnotizing Justice Kennedy and the other conservative justices to change their views in a way that Justice Stevens could not (despite his being renown for having a close relationship with Justice Kennedy), doesn’t this acknowledgment by the Post mean that the most likely impact of Kagan’s confirmation is a right-wing shift?  The way to assess a new Justice’s impact is by evaluating where they fall on the spectrum not in absolute terms, but in comparison to the Justice they are replacing.

That said, I became slightly more comfortable with Kagan once I watched her hearing, even as vapid and hollow as that hearing was (though it was mildly more informative than the completely farcical Sotomayor and Roberts hearings).  She’s intelligent in the extreme, and I do expect her to vote reliably with the Breyer/Ginsberg/Sotomayor bloc on most issues, with the exception that she’ll likely be far more deferential to Obama administration positions generally and assertions of executive power specifically.  But the case against Kagan from the start was that the Justice she would replace was the leader of the “liberal” wing of the Court and its most emphatic advocate, and that replacing him with a more moderate Justice (even one who would be reliably Democratic) would move the already right-wing Court further to the Right — not radically, but marginally.  As the Post article today inadvertently suggests, that seems as likely as ever after her confirmation hearing.

The second point concerns the “justification” repeatedly offered for Obama’s having nominated someone with such a sparse record:  namely, that Democrats — not just with Court nominees but in general — must rely on stealth maneuvers, moderate-appearing advocates, and blank-slate nominations because doing so is politically necessary.  This is the same genre of excuse the Democratic establishment and its supporters offer for much of what it does.  The Kagan nomination should bury this false excuse-making for good.

Obama’s prior Supreme Court nominee, Sonia Sotomayor, was the anti-Kagan (which is why I vigorously supported her nomination):  she had 15 years of judicial opinions behind her, so that everyone could see what kind of judge she would be.  Beyond that, she had given numerous speeches and interviews on a variety of difficult topics and had advocated for controversial views, because she didn’t adopt a pathologically risk-adverse approach to succeeding in life.  And what was the outcome?

Sotomayor was confirmed with 5 more YES votes — and 6 fewer NO votes — than Kagan (68-31 for Sotomayor v. 63-37 for Kagan).  Beyond that, Sotomayor was substantially more popular with the public than Kagan.  From Gallup earlier this week:  “Compared with public support for Sotomayor at a similar point on her path to the high court, support for Kagan is lower across the board — including across gender, age, and political lines.”  Indeed, Kagan is the first Supreme Court Justice in the last 25 years to be confirmed to the Court with less than 50% public approval:

In other words, the supposedly safe, moderate-appearing, blank slate nominee (Kagan) received fewer confirmation votes, and was less politically popular, than the supposedly risky, clearly liberal nominee with a long record of judicial opining and controversial statements (Sotomayor).  Aren’t there important lessons in those facts?  Doesn’t that rather clearly contradict the endless excuse-making from the Democratic establishment that muddled moderation is politically necessary?  If you’re going to attract a tiny handful of GOP votes no matter what, why not nominate someone who will enliven the public, inspire your base, and provide an opportunity to advocate and defend a progressive judicial philosophy?

The reality is — and this has long been clear — that Americans have little respect for, and even less interest in, people who stand for nothing and seem afraid of their own belief system.  Clarity of principle and courage of conviction are almost always more politically appealing than muddled incoherence, calibrated careerism, or muted cowardice.  The GOP’s recognition of this fact was the primary cause of George Bush’s otherwise inexplicable political success (the key line from his 2004 RNC Convention acceptance speech:  ”Even when we don’t agree, at least you know what I believe and where I stand“).  And many of the Democrats’ failures have been due not to excessively strong advocacy of liberal views, but to the opposite:  confusion about what they believe, if anything.

In any event, what’s clear is that the Democratic establishment avoids progressive positions not because they wish deep down that they could embrace them but believe that it’s politically impossible to do so.  As the Kagan episode demonstrates, muddled moderation is a political liability, not an asset.  The Democratic establishment embraces the policies, positions and nominees that they do because that’s what they believe in (this and this are the face of the Democratic establishment).  The supposed political advantage of “moderation” is not the cause of what Democrats do, but rather the factually dubious placating excuse given to progressives to explain this all away.

UPDATE:  Jonathan Bernstein, who is on a perpetual quest in life to shield Barack Obama from blame for anything, has convinced himself — without citing a shred of data — that the approval ratings of Supreme Court nominees are determined by the popularity of the President who  nominates them (and therefore, needless to say, criticisms over Obama’s choice of Kagan are misguided).  He asserts that “support for nominees appears to be highly correlated with presidential approval levels” and thus:

Kagan almost certainly did worse than Sotomayor not because of anything having to do with them as Court candidates, but because Barack Obama was far more popular in spring 2009 than in spring 2010. 

Someone should tell Bernstein that George W. Bush was quite unpopular in 2005 and 2006 — certainly more unpopular than Obama is now.  Despite that fact, Bush’s Supreme Court nominees during that time (John Roberts and Sam Alito) were quite popular, especially Roberts — the most popular nominee of the last 25 years, who was more popular than Sotomayor and far more popular than Kagan, despite the fact that Bush had fallen to 39% approval ratings at the time of confirmation.  By 2006, Bush’s approval ratings had collapsed to humiliating levels (33%), yet his 2006 nominee (Alito) was quite popular — also far more popular than Kagan.  Those facts negate Bernstein’s evidence-free belief that what determines the popularity of a nominee is the popularity of the President. 

Beyond that, Ronald Reagan had healthy approval ratings in 1987 — the same time when his nominee, Robert Bork, received the lowest public approval rating of any nominee of the last 30 years, and was ultimately rejected.  Moreover, as the Gallup chart I excerpted above reveals, the most unpopular nominee since Robert Bork was Harriet Miers, nominated the very same year as the highly popular Roberts.  Despite being nominated close to Roberts in time, she had 18 points lower public approval than Roberts did.  That further demonstrates that it is the nominee — not the popularity of the President — which is the most significant factor in determining the nominee’s popularity.  How else to explain the vastly disparate approval ratings of two Bush nominees (Roberts and Miers) nominated in the very same year?

Now I see why Bernstein cited no evidence for his claim that “support for nominees appears to be highly correlated with presidential approval levels”:  because none exists.  Virtually all the available evidence provided here proves exactly the opposite of what the Obama-defending political scientist claims.