Kagan: A question of boundaries

By Howard Kurtz
Washington Post Staff Writer
Thursday, May 13, 2010; 9:25 AM

When Elena Kagan was nominated, I figured that the media would treat the whispering about her personal life rather gingerly, if at all.

It's been about as subtle as a sledgehammer.

In fact, with friends now emerging to say that the solicitor general of the United States is not gay, a larger debate has taken root over whether such questions should be asked at all.

On one side are those who say that public officials ought to be entitled to serve without having their private lives dragged into the spotlight. In short, who cares whom they sleep with (if it's not, say, a candidate sleeping with an aide or a congressman sleeping with a lobbyist)? Where is the relevance?

On the other side are those who argue that public officials cannot simply wall off one part of their lives in this age of 24-hour media scrutiny. This is particularly true, they say, in the case of a justice receiving a lifetime appointment, who will be ruling on cases where his or her personal experience may be extremely relevant.

After all, in this view, we openly debate whether the court -- a collection of white men for nearly two centuries -- needs more women, or minorities, or non-Ivy Leaguers, or, at the moment, a single Protestant. Why is homosexuality the only kind of diversity that is off-limits?

My own feeling is that people shouldn't be outed against their will. But the Kagan case has always been a bit odd in that respect, as I learned when I reported on the administration's outrage about the CBS News Web site picking up a report from a blogger who mistakenly declared that Kagan is openly gay. Administration officials welcomed the opportunity to say (on background) that she is not gay, rather than dismissing the matter as unworthy of comment.

This is, to put it mildly, a debate with implications well beyond this one nominee. The Clarence Thomas hearings broke one kind of ground in introducing sexual comments into a confirmation battle; the Kagan situation is something else entirely.

Politico's Ben Smith goes there, and gets people on the record:

"Elena Kagan is not a lesbian, one of her best friends told POLITICO Tuesday night, responding to persistent rumors and innuendo about the Supreme Court nominee's personal life.

" 'I've known her for most of her adult life and I know she's straight,' said Sarah Walzer, Kagan's roommate in law school and a close friend since then. 'She dated men when we were in law school, we talked about men -- who in our class was cute, who she would like to date, all of those things. She definitely dated when she was in D.C. after law school, when she was in Chicago -- and she just didn't find the right person.'

"Walzer, half amused and half appalled to be discussing her friend's sexual orientation, agreed to be interviewed after Kagan's supporters decided they should tactfully put an end to the rumor, which White House officials had already tried to squelch in background interviews with reporters."

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