05/14/2010 10:38 pm ET | Updated May 25, 2011

Outing Ms. Kagan

Continuing the conversation on Elena Kagan, all sides benefit politically from the tabloid melee over her perceived sexuality. There's quite a bit of chatter about this. On the face, it's unfortunate - not so much in terms of the sexuality angle, as Luisita Lopez Torregrosa puts it in Politics Daily:

We are so degraded in this age of 24-hour revelations about the lives of the famous and infamous that we cannot believe for one minute that Elena Kagan may have a completely non-newsworthy life as a single woman who does not date, has not had a significant other, or simply does not want to blab to the whole world about any of it.

Torregrosa is correct that the general public is more into the salacious details of private lives than we are into learning more about crucial public policy. And, that's the real shame here: the fact that more substantive discourse is, once again, lost in favor of the reality show.

In this instance, though, don't believe the hype. The White House will sit back and let this part play itself out. It's already scored a major point for pimping the non-controversial nominee, which means President Obama gets less resistance when pushing other legislative initiatives such as climate change and something they like calling financial regulatory reform. Constant focus on what Kagan does in the bedroom and who with is a great way to keep folks distracted from the substance: her positions on critical legal issues and if she really is a "diverse" candidate. The most we've gathered is from dusty Clinton Era memos, reports Josh Gerstein in Politico:

The memos reviewed by POLITICO suggest that, during her time as a White House deputy domestic policy adviser, Kagan fit comfortably within a cadre of Clinton aides known for centrist impulses. And Clinton often appears to have sided with Kagan's approach

It's problematic that her legal philosophy is nuanced, at best. There's not much of a paper trail to work from. The confirmation hearing will be filled with a great amount of supposition, theory and hyperbole from Senators looking to curry favor with constituency X, Y and Z. Some folks may see the Administration's ambivalence as a simple mix of innocent "oops" and high-mindedness - "We're staying above the fray." Yeah, o.k. - on the real, it wouldn't be surprising if certain cats within the White House are quietly driving this conversation about Kagan's sexuality. With that, Kagan's nomination garners even greater support from middle class women tired of the "lesbian" narrative applied to single, successful, unmarried (and sports-loving), aging female professionals without children ... who, ummm, wear short haircuts. President Obama gets more points from the larger half of the electorate in 2012. Here's to your second term, Mr. President.

It's also a great way to spread blood in the water for conservative activists who will spend sick amounts of time and energy lost in Kagan's closet. The left gets an opportunity to scream bloody murder at every suspect Kagan-at-a-softball-game photo that shows up on Wall Street Journal's front page or every FOX news roundtable that blathers on endlessly about why this is important (why is it, again?). That's less time spent on wedge litmus-test social issues like abortion or questions about gun rights - they'll even talk less about gay marriage while twisted up on whether or not her lifestyle factors into the jurisprudence (although, we still get - yes - another SCOTUS nominee hearing where affirmative action [the real 800 pound gorilla in the room] is relegated to testimonial footnote). Still, spreading rumors and innuendo about Kagan's personal life stirs the bigoted cauldron and further warps the imagination of conservatives, birthers, Tea Party soldiers and other assorted conspiracy theorists on the right. That might energize the "base," but it will only make the GOP more isolated from yet another voting demographic. However, some Republican hacks will hope that all the hype and stress may drive Kagan to eventually withdrawal. Good luck with that ...

Blogger Andrew Sullivan's poking into Kagan's personal life is not so much about him as it is about the gay/lesbian community hoping to claim her as a "first." Questions the openly gay and typically cantankerous Sullivan in a recent Atlantic Monthly post:

Well: does he view Kagan's possible life-experience as a gay woman relevant to this? Did Obama even ask about it? Are we ever going to know one way or the other? Does she have a spouse? Is this spouse going to be forced into the background in a way no heterosexual spouse ever would be?

Since bloggers rule the day, there is no such thing as journalistic integrity anymore - so what does he have to lose? In fact, dude gets more page views and obscene traffic numbers. Sullivan also likes the pitch: the confirmation of the first "gay" Supreme Court Justice would be, obviously, historic. There are interests pushing for an "outing" of sorts - at her expense. Sullivan, and others, are itching for some sign, some tangible signal of "gayness" from Kagan:

Is Obama actually going to use a Supreme Court nominee to advance the cause of the closet (as well as kill any court imposition of marriage equality)? And can we have a clear, factual statement as to the truth?

If she won't hang that laundry, well, they'll hang it for her. The White House, again, might be quietly driving that conversation, too, again winning over a voting bloc that hasn't been feeling the President that much these days.

So, let the games begin. Everybody wins. Drinks on me, fam.


(originally published in