Read Slate’s complete coverage of Elena Kagan’s nomination to the Supreme Court.
Every few years, history throws us a fresh, new Supreme Court nominee who—both by design and temperament—is completely unknowable. This forces the country into a brief round of political speed-dating, wherein we try to fall in love with a nominee just as that nominee attempts to float in the ether above us. And as is often the case when you are speed-dating someone who will not speak, the only option is to spend most of the time talking about yourself. So, “Is Kagan an Ivy League elitist” may actually mean “Am I an Ivy League elitist?” “Is Kagan a soulless careerist?” may be read as “Am I a soulless careerist?” and “Hey! Why isn’t Kagan married?” starts to sound an awful lot like “Hey! Why am I not married?”
Now you’d think that with the dumping last night of tens of thousands of pages of Kagan’s professional writings, we would be able to lay aside this game of dressing her up as the Choose-Your-Own-Anxiety Barbie. Yet we remain fixated on Kagan’s looks, her sexuality, her gender, her single-ness, her hotness, her not-ness, and her personal ambition. Who cares what she really thinks about the merits of the exclusionary rule? This is not the stuff of which TV talk shows are made.
Since we can’t spend these few weeks before the confirmation hearings getting to actually know the nominee—indeed we will find ourselves knowing slightly less about her every day if the White House manages things properly—we instead take the opportunity to get to know ourselves a little better. How much does race still matter in America? Here’s what I think Kagan’s minority hiring record tells us! Does religion still divide us? Here’s what I think Kagan’s religion tells us! As social commentators, we expand to fill the enormous space the nominee has left vacant.
Let’s begin where we inevitably must: with the fact that Kagan is unmarried. Maureen Dowd, having just skewered the White House for painting Kagan as a Girls Gone Wild party girl, is certain that Kagan’s single-ness has been spun by the White House as pathetic spinsterish loneliness. Really? I haven’t seen much evidence of the White House spinning Kagan as lonely or too hardworking to marry. Maybe I just get the wrong press releases. It seems to me that a few of Kagan’s friends talked about how she dated when she was younger but just didn’t get hitched, and the choice to freak out about her unmarried status was ours. This was a proxy for the awkward conversation we’re having about (or really around) sexual orientation. But it’s also a proxy for how being unmarried still freaks Americans right out.
What I see in the national obsession over Kagan’s unmarried status is precisely the same thing I saw in the national obsession over David Souter’s: We want Supreme Court nominees who are diverse and interesting, but as soon as we get one, we treat their unique qualities like hideous communicable diseases. Sonia Sotomayor was the first Latina. So we called her a racist. Ruth Bader Ginsburg was a feminist legal pioneer. So we called her a radical. And we thought David Souter (mother, farmhouse, perennially unplugged TV) was just so much tragic marital roadkill.
Is there a double standard when it comes to unmarried women versus unmarried men and the Supreme Court? I really don’t think so. I think we’re so in love with marriage in this country that we refuse to accept that not everybody does it. We prefer a four-times-married William O. Douglas to a celibate David Souter. *
Take a look at what they were saying about poor Souter when he was nominated to the Supreme Court in July of 1990. David Margolick at the New York Times wrote of a “quiet concern over (Souter’s) circumscribed way of life” and noted that “[a]s a young man he was briefly engaged to the daughter of a State Superior Court justice, but he never married, and even his admirers wonder whether his solitary style has limited his empathy or level of human understanding.” His old girlfriends were rousted out and interrogated just as Harriet Miers’ old boyfriends and Kagan’s old roommates are being trotted out like trial exhibits.
And Sen. Orrin Hatch, R-Utah, was so worried about Souter’s creepy bachelorish ways that he told NPR before the hearings that “the court is facing a whole range of family issues and that Judge Souter does not have the experience of family life—a wife and children—to draw on to help him with these decisions. I’ll be exploring that with him because, frankly, right now it makes me uncomfortable.” Uncomfortable, you know, the way single men hanging out at the ice cream truck make you uncomfortable?
Go further back in time, to the 1930s, and you find that Benjamin Cardozo also had to explain his single status to the world at his confirmation hearings. Whether Cardozo was gay, celibate, or in love with his sister is still unknown to court historians, but you can be sure he would have failed Sen. Hatch’s icky bachelor-test. The Supreme Court confirmation process shows us to ourselves in rather stark relief, and the truth is that people who aren’t exactly like us make us unbelievably nervous, especially when we’re about to give them one of the most powerful jobs in the land. We want our outsiders to be insiders, our women to be men, our minorities to be white, and our singles to be married.
I confess that I’m as apt as the next guy to project my deepest anxieties onto the blank slate that is Elena Kagan. It’s just that I chiefly do it by anguishing about her lack of a coherent constitutional philosophy as opposed to sex. And yeah, that makes me a hoot at the parties. But given that the next few weeks are guaranteed to reveal nothing new or deeply personal about Solicitor General Kagan, agonizing publicly about her deeply personal qualities seems rather pointless. If we’re going to talk about Kagan, let’s stick to her record, her writings, and her speeches. And if you want to talk about your love life, looks, academic anxieties, ambition, dreams of marriage, or dating history, I’m also all ears. But maybe let’s just leave her out of it?
Correction, May 20, 2010: The article originally stated Douglas had only been married three times. (Return to the corrected sentence.)
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