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."

Another friend who vouches for Kagan: Eliot Spitzer. Though I'm not sure he's the guy you want out there talking about sex.

At the Daily Beast, Benjamin Sarlin takes on Andrew Sullivan, who, as I noted yesterday, contends that Kagan should just answer the question:

"In an e-mail interview with The Daily Beast, Sullivan said that as a blogger, 'my job is to think out loud. It is not my job to report stories.' As for information on Kagan's orientation, 'one need have no 'evidence' beside the fact that she is single and seems to be lacking in any emotional or relationship history to ask a question not about her private life but about her public identity.'

"But Todd Gitlin, a professor of journalism at Columbia University, told The Daily Beast that Sullivan's failure to provide any clear evidence that Kagan's sexuality was in question raised major ethical concerns by pushing unsourced rumors into the mainstream press.

" 'It's slimy locution here in that he writes 'We have been told by many that she is gay,' ' Gitlin said. 'And what would constitute evidence? If someone shows up and says 'I slept with Elena Kagan when we were in college,' so what? I see nothing but slime down the slippery slope because accusers are a dime a dozen.' "

Andrew Sullivan elaborates on his reasoning:

"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. . . .

"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. . . .

"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."

Sullivan also addressed this Slate post by William Saletan, who recalls that Robert Bork was asked about his religious views at his 1987 confirmation when Time reported that, though raised a Protestant, he was agnostic (which Bork denied):

"This was easily one of the most disgusting episodes in the history of Supreme Court nominations. And it took place only 23 years ago. Yes, tolerance of sexual and religious differences has increased since then. But is it safe, even today, to seek confirmation to the court as an open agnostic or deist, much less as a homosexual? And if the suspicions about your sexuality or agnosticism are mistaken, can they ever truly be put to rest? Bork tried to do that while maintaining some semblance of religious privacy. He failed.

"Sullivan argues that sexual orientation is a legitimate subject of inquiry because it affects judicial rulings:

"Since the issue of this tiny [gay] minority -- and the right of the huge majority to determine its rights and equality -- is a live issue for the court in the next generation, and since it would be bizarre to argue that a Justice's sexual orientation will not in some way affect his or her judgment of the issue, it is only logical that this question should be clarified.

"But Bork's critics made the same argument during his confirmation process. . . .What happened to Bork is a warning to any of us who would press a nominee to divulge her faith or sexuality. It's a portrait of how grotesque our country can become in its determination to expose and pick at the personal lives of public figures."

Is there a double standard when it comes to women? Eleanor Clift explores that question at Politics Daily:

"The White House, doing its job, is touting all the warm personal relationships Kagan has with both faculty and students at Harvard, where she was dean of the law school, and how liked and admired she is by all the people she's worked with and for, from Capitol Hill to the Clinton White House to academia. To build Kagan's personal life, you might say it takes a village.

"Yet the subliminal judgment being made is that she is somehow unfulfilled and less of a person because she has not married and had children. I don't believe that's the case, but for those who do, the questions they should ask themselves are: Will her marital status interfere somehow with her interpretation of the Constitution? Will it interfere with her ability to fulfill Obama's goal that she become a voice for ordinary citizens on a court that is dominated by people who reflect corporate interests by background and training?

"It's more likely that any emphasis on Kagan's personal life, or lack thereof, is about tapping into the latent culture wars, and raising eyebrows about any woman (or man for that matter) who for whatever reason chooses not to marry. For feminists tempted to get into high dudgeon over such unfair treatment, I have two words: David Souter."

To digress for a second, Washington Post ombudsman Andy Alexander raised a related issue in the killing of a local principal and the paper's decision not to identify him as gay -- even after police said the man had met at least one person charged in his murder through a phone-sex chat service.

"Several readers who identified themselves as gay called to say that they would surely lose their sensitive military or intelligence agency jobs if their sexual orientation were to be revealed by The Post in the event they became part of a news story.

"But many other 'out' gay men contacted me to urge The Post to be less restrictive when writing about those who make no secret of being gay to family, friends and work colleagues."

This is a subject on which there is passionate disagreement even within the gay community.

Back to Kagan: The New York Post reports on one of the silliest parts of the debate.

"The Wall Street Journal's decision to feature a front-page photo of Supreme Court nominee Elena Kagan playing softball has ignited a national discussion about why people assume that women who play the field are lesbians.

"Despite being wildly popular with both sexes, the game is to gay women what stickball is to Brooklyn."

News to me. I played lots of softball.

Bill Kristol tees off on a WSJ op-ed by former Harvard Law dean Robert Clark, who says he and Kagan acted fairly in challenging military recruitment in light of the don't-ask-don't-tell policy:

"We do have civilian control of the military in the United States, and this policy is based on legislation passed by Congress and signed by the president. So, to repeat the obvious point: Why punish the military for the policy of the government -- in this case the Clinton administration?

"Furthermore: Did it occur to no one at Harvard Law School, especially after 9/11, how offensive this exercise in moral preening and posturing might be to other Americans? Law firms who represent all kinds of reprehensible characters and foreign governments get assistance to recruit on campus -- as they should. The one institution that was judged too soiled to be assisted to recruit Harvard law students was the U.S. military.

"Dean Kagan should and will be asked to defend her position."

Remember when the GOP jumped on Obama last year for saying he wanted a court nominee who had empathy for ordinary folks? As Steve Benen points out in the Washington Monthly, that backdrop makes the latest remarks by Texas Sen. John Cornyn "a little confusing":

"The Republican senator told MSNBC that Elena Kagan 'has not had any experience, both in a courtroom as a judge or as a practicing lawyer, to be able to be able to understand [the impact of the law on average everyday people]. She has been a legal academic at Harvard and worked here in Washington, D.C. I'm happy to hear how she thinks those qualifications qualify her for the highest court, but certainly they don't put her in touch with the impact of the law on average everyday citizens.'

"On its face, the argument itself is dubious. It's not as if Kagan has been locked up in an ivory tower throughout her professional life. But putting that aside, why in the world would John Cornyn care if a Supreme Court nominee can understand the impact of the law on average everyday people? What does that have to do with dispassionate analysis of the law?"

So which is it? Must the robed ones be able to relate to "everyday citizens" or not?

This just in: Kagan has granted an interview! She talks to. . . . a White House staffer, for a polished, television-style report on its Web site. Kagan says such things as "it is the most remarkable privilege to represent the United States in the Supreme Court."

As CBS observes:

"The decision to post an interview with Kagan conducted by a government employee -- not a journalist -- is in line with the Obama administration's policy of regularly using new media tools to go around traditional media.

"Doing so allows the administration to better control its message -- and, in this case, avoid any uncomfortable questions for their Supreme Court nominee."

In fairness, though, it's been decades since an administration allowed a Supreme Court nominee to talk to the press.

2010 Watch

An NBC/Wall Street Journal poll finds that "half of the nation still approves of President Barack Obama's job performance; Republicans continue to enjoy an enthusiasm advantage heading into the upcoming midterm elections; and more than eight in 10 remain dissatisfied about the economy." Also, "Nearly two-thirds of Americans back Arizona's new controversial immigration law."

Meanwhile, with the GOP in strong position for a comeback this fall, the Journal notes, "Just 30% in the survey said they feel positively about the Republican Party -- a smaller share than for the Democratic Party and the tea party movement. Of those who want to see Republicans control the House, less than a third said that was because they support the GOP and its candidates. Rather, nearly two-thirds said they were motivated by opposition to Mr. Obama and Democratic policies."

There they go again

Remember when this guy joked that the press was his base?

"Sen. John McCain seems to have his hands full against former Rep. J.D. Hayworth in his bid for the GOP Senate nomination in Arizona -- but he's not doing as bad as the 'liberal media' want you to believe," reports Politico.

" 'The line that the liberal media is trying to write is that I'm in some kind of trouble, I'm not,' McCain told reporters. 'I'm working hard. If I don't work, I could be in trouble, I'm proud of what I can do for the people of Arizona who are hurting very badly right now.' "

McCain may not be in deep trouble -- he's got a 12-point lead in one recent poll -- but even the conservative media think it's newsworthy that the GOP's 2008 presidential nominee is in a competitive primary at all.

Howard Kurtz also works for CNN and hosts its weekly media program, "Reliable Sources."

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