Honestly, I don’t have an opinion one way or another about Elena Kagan’s suitability for the Supreme Court. I really don’t like that when she ran Harvard, she banned military recruiters from campus over “Don’t Ask, Don’t Tell,” but I don’t know that that disqualifies her in my view. I also take the view that barring real unfitness for office, the president has a right to put his own picks on the High Court. I believed that under Bush, and I believe that under Obama. I suppose I’ll have to read the coverage in the days to come to see if Kagan strikes me as suitable for the High Court.

The question of her homosexuality — whether she is or isn’t gay, and whether or not it matters — has been fiercely argued on the blogosphere today. A Cornell law professor says that Kagan has clearly indicated she believes gay marriage is a political question, not a constititutional one (i.e., there is no constitutional right to gay marriage), but Maggie Gallagher says that’s not so (and she cites the Human Rights Campaign, a gay-rights lobby, as agreeing with her that Kagan supports marriage equality). Ed Whelan notes that Kagan issues a slippery “clarification” of her stance on whether or not gay marriage is constitutionally permissible. I do believe that whichever side of this question one is on, it’s a serious issue, and certainly fair — indeed necessary — to bring up in Kagan’s confirmation hearings.
But is the question of whether or not she is herself a lesbian fair, or significant? I’m open to changing my mind on this, but I’m thinking at this point that it is not. I don’t believe a person’s sexual orientation guides their legal philosophy, or should guide it, though if Kagan believes otherwise, we need to know that. If she’s a smart, capable, wise legal scholar who gives all indications of being a good jurist, why do any of us need to know whom she goes to bed with? What I can’t make sense of is Andrew Sullivan’s apparent position, which has taken shape over a number of posts. If I’m reading him correctly, Sully’s saying, re: Kagan, that being gay is nothing to be ashamed of, and the White House ought to trumpet Kagan’s homosexuality, if indeed she is gay — but to use her homosexuality to criticize her nomination is part of a right-wing “smear” campaign.
Well, no, you can’t have it both ways. If she’s gay, and her sexuality is relevant to her nomination, then you have to allow people to take whatever position they like on it. You can’t say that it’s improper to discuss her sexuality if negative conclusions are to be drawn from it. Although I suppose what Sullivan is after is having an actual fight over her homosexuality, because he thinks “don’t ask, don’t tell” with reference to a SCOTUS nomination in inherently anti-gay — and he wants to have a battle that he believes the social conservatives are going to lose.
Anyway, what do you think? Does it matter if Kagan is gay? If so, why? Remember, let’s be civil. I’m going to unpublish rude or gratuitously provocative comments.