Is Elena Kagan's sexual orientation any of our business?

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Karen Tumulty
Washington Post Staff Writer
Friday, May 14, 2010; 1:00 PM

The Post's Karen Tumulty takes your questions about the political war of words over Supreme Court nominee Elena Kagan's sexual orientation.

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Dunn Loring, VA: I thought GOP wanted smaller and less intrusive government, to be kept out of our family, private, and bedroom lives. Isn't it a height of hypocrisy to make an issue of someone's sexual orientation?

Karen Tumulty: Hi. This is my first Webchat since joining the Washington Post.

The GOP, as a party, is not making this an issue. It is really something, I think, that is coming from an ideological point of view, not a partisan one.

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Tampa, Fla.: Could concern over Kagan's sexual orientation become a wedge issue dividing the right? It seems to me that the libertarians shouldn't care and would resent getting hung up on this. On the other hand, conservative christians I know think a lesbian on the Supreme Court would be worse than 9/11 (I'm not kidding).

Should this issue get hot, could the Dems use it to drive a wedge between the libertarians and the religious right?

Karen Tumulty: Given the sensitivities surrounding this issue, it is hard for me to see Kagan's backers trying to elevate it. If anything, they are trying to make it go away.

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Rhode Island: Hi Karen,

I've enjoyed your work for a long time and am glad to see you with The Post!

In real life - I think sexual orientation is always going to be a matter of curiosity. I see it akin to wondering about someone's religion, ethnic background, work history - not make or break factors, but just pieces of what makes us who we are.

There were murmurs about Souter; I'm surprised there weren't more about Sotomayor: wasn't she married very briefly, a long time ago? Or was she in the clear, lacking a damning softball photo?

Karen Tumulty: Thanks. I am really enjoying it here.

I deal with the murmurs about Souter--which, actually, were more than murmurs. People went looking for ex-girlfriends, which as Souter himself noted (in an interview I quoted in the story) made the whole confirmation process excruciating for someone who had lived as quiet and as private a life as he had.

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Montague, Mass.: I am getting sick of the discussions over whether or not Elena Kagan may be gay, whether or not her not being a parent makes her an asset to the Supreme Court, whether or not being yet another Ivy Leaguer or Jewish is a good thing or not, etc. What are the things about Ms. Kagan that we don't yet know that we truly should understand to assess the kind of justice she will be?

Karen Tumulty: What we don't really know is the most important thing of all: What her judicial philosophy would be. And the fact is, that is something that we really won't know until she is on the court, if in fact she is confirmed. Many justices have turned out to be great surprises once they reach the court. Kagan is more of a mystery, I think, than most, because she lacks a true judicial paper trail.

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Detroit: Unless the nominee is utterly incompetent, senators are going to vote yes or no based upon whether they like the idea of Obama appointing someone to the Supreme Court. The court has become a political body (e.g., the Bush-Gore decision) and not a true judicial body. Senators recognize this and want someone of their political persuasion; not someone who can interpret the constitution and laws.

Karen Tumulty: That is a great point. At a minimum, the confirmation process is a political process. And Kagan would hit the court at a moment when many of the most important initiatives of the Obama presidency (health care being the biggest) are under challenge. That is why so many opponents are already calling her a "rubber stamp." But as I noted earlier, Supreme Court justices have a history of surprising us.

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Alexandria VA: Yes, her sexual orientation is our business, in the same way that the personal background of other nominees became our business. Remember the circus around Clarence Thomas and whether he did or did not harass Anita Hill? And Judge Souter's solitary life? If we are entitled to know all of that, then Kagan's life is no different. If she wants to be on the Supreme Court, where the decisions of nine people affect the lives of some 300 million, then she needs to be prepared to make her life an open book.

Karen Tumulty: Leaving aside Clarence Thomas and the controversy that surrounded his nomination, it is fair to say that biography has become more important. We saw that last year in the nomination of Sonia Sotomayor, where we heard far more about her upbringing, it seems, than we did about her philosophy.

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Silver Spring, Md.: I'm one of those women who never had luck with guys (or should I say "boys") unfortunately, and don't look that feminine. I'm not married, and since I was 28 have had people (men, mostly) ask if I'm a lesbian. I find it highly insulting, and once, I asked the guy who was asking me if HE was gay. He was was taken aback, took umbrage to it, and I asked him, "So why is it OK to insinuate that I am?" I think I was 30!

I don't care if she's gay, straight or asexual - what I care about is someone's competence, their resume, and their attitude toward doing their job. Shame on the WSJ for the softball photo, a very cheap shot.

Karen Tumulty: As my colleague Ruth Marcus wrote today, sometimes a softball bat is just a softball bat.

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Bethesda, MD.: We seem to becoming a geographically divided country. Some issues have strong support in the Southern states, such as whether Obama has a proper birth certificate, that have little appeal outside these states. I could be wrong, yet I suspect most discussions about the sexuality of a Supreme Court nominee are going to be more focused in the Southern states. For instance, how much serious discussion have you heard of this topic within the Beltway?

Karen Tumulty: I think there has been a significant amount discussion everywhere, but it is striking how much of that discussion (on all sides) appears aimed at driving an agenda. And of course, the internet really knows no geography.

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Tampa, FL: I didn't mean to suggest that Kagan's backers elevate the issue. I meant to say that if her opponents insist on and do indeed elevate the issue, could the Dems then use it to drive a wedge between the libertarians and the religious right?

Karen Tumulty: I doubt that this issue will come up directly in her hearings at all. It is one that can too easily backfire.

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Philadelphia, Pa.: I noticed there were some conservative legislators who tweeted concern over the lack of their being any Protestants on the Supreme Court. This was discussed in another discussion and someone did question if this happened and, yes, it did.

I don't believe anyone stated they would oppose a nominee because she is not Protestant. I believe some were playing to their Protestant base. I am not certain, beyond that, what the concern would be other than an intellectual exercise, as there is not necessarily an automatic ideological bent due to religion, as there are conservatives and liberals who are Jewish and Catholic.

Karen Tumulty: That is an interesting point. What is a "Protestant" perspective? Or for that matter, a gay one? One of the unfortunate places where this whole conversation takes us is the suggestion that aspects of a personal life can make you unqualified to render an opinion based on the law.

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Iowa: As a rule, I couldn't care less on this issue. But isn't the current flap partially a result of Obama's insistence that life experience should be taken into account? If it is relevant, people have a right to know what that life experience is. I'm not convinced it should be relevant to a supreme court nomination.

Karen Tumulty: It is true that Obama himself has elevated the issue of biography--starting with his much-maligned "empathy" standard. Then again, we live in a culture where people want to know the whole person, and where public figures sometimes want to tell us more than we really want to know. There are members of Congress who now tweet what they had for breakfast.

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So what if she is gay?: Why are conservatives so afraid of everything that does not match their fairy tale versions of the 'shoulds' and "supposed to be's" (as contrasted to actual reality and living human beings) anyway? If something doesn't match their mythology, they want to control it away by any means necessary, including a completely right wing activist court/judiciary.

And why are they so utterly unaware of all their many many contradictions as others have pointed out?

Karen Tumulty: Again, it is not just conservatives who have kept this going. It has also been fanned by gay rights advocates--and others--who want to get past the idea that sexual orientation is somehow a stigma or a disqualifier.

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Winnipeg, Canada: Just want to say that as a Canadian, I find that speculating about the sexual orientation of a public figure is kind of quaint and almost charming. It reminds me of a bygone era when people argued the respective merits of casettes versus eight-tracks.

Karen Tumulty: Quaint, maybe; charming, not so much.

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Houston Texas: It is none of our business and no one should care she is smart and qualified & that is all that should matter, sadly that won't be the case

Karen Tumulty: That is a good point coming from Houston, a conservative city that recently elected as its mayor a woman who had been living for decades in a committed relationship with another woman, with whom she was raising children.

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State College, PA: The only answer to the question posed by this chat is: 'No, of course not. Full Stop.'

Karen Tumulty: Full stop may be a good point at which to end this. Thanks so much for joining us today. I'm new here at the Washington Post, and look forward to doing it again in the not too distant future.

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