The XX Factor

Elena Kagan’s (Non) Sexuality

President Obama did not hint at or allude to or even tip-toe around the question of Supreme Court nominee Elena Kagan’s sexuality in his announcement today, and neither did she. And so it should be. As our own Emily Bazelon and Dahlia Lithwick pointed out last week, unless anyone comes up with actual proof that Elena Kagan is a lesbian-and NO, this is not an invitation to go hunting-the whisper campaigns and the whisper campaigns about the whisper campaigns should end. Whether that stops people from endlessly Googling “Elena Kagan” and “gay” is another story.

It is, of course, perfectly possible for Republicans to wage an all-out war against her in the nomination hearings. Some conservative groups would be pleased if her sexuality became a central issue and Kagan became to gay politics what Anita Hill was to gender. But somehow, I doubt this will happen. For one thing, other whispering types are already set to spread the same rumors about Lindsey Graham, the main questioner in Kagan’s previous nomination hearing for solicitor general. And also, this is not a culture war moment. Our country is in a funny stalemate about homosexuality. Even in conservative Christian circles where homosexuality is considered wrong, it’s equally unseemly these days to out or attack someone for it.

More likely, this will remain a mystery, raised now and again when a gay-rights case hits the court or a new rumor emerges from Harvard. It will be properly filed with everything else we don’t know about Kagan. As her old friend Jeffrey Toobin wrote about her : “She was a highly regarded member of the White House staff during the Clinton years, but her own views were and are something of a mystery. She has written relatively little, and nothing of great consequence. ”

He continues, comparing her to Obama:

They are both intelligent, of course, but they also share an ability to navigate among factions without offending anyone. Remnick’s Obama is very … careful. He takes no outlandish stands or unnecessary risks. He is an exquisite curator of his own career. All of this is true of Kagan as well.

In his announcement speech, Obama praised Kagan for the same brand of empathy he had seen in Justice Sonya Sotomayor. Law was not just an “intellectual exercise” for her, but something that affects the “lives of ordinary people.” Behind the law, he said, she understands that “there are stories of people’s lives.” This naturally led into a little biographical sketch of Kagan. We learned that she is the granddaughter of immigrants, that she comes from a family of teachers, and that neither of her parents is still alive. That’s about it.

But in politics, as in the law, we are often reminded at the same moment we are learning about someone, that we actually know very little about them. This is a point Janet Malcolm made in her rich New Yorker piece last week about a murder trial in Queens. The law is an excellent vehicle for telling personal stories, but those stories are often incomplete, confusing, and sometimes intentionally misleading. So for the moment, with Kagan, we will have to do with bits of color; for example, the fact that this is the first time there are enough women on the Supreme Court to have an all-female sports rivalry (Kagan’s Mets vs. Sotomayor’s Yankees).

Photograph of Elena Kagan by Win McNamee/Getty Images