Elena Kagan has a major problem. She’s apparently not gay.
If she were gay, she could simply shoot down the is-she-gay question with the obvious rejoinder: Who cares? And she could follow up with a similarly obvious point: Seriously, who cares?
If she were gay, someone would have to actually step up and say that being a lesbian somehow made Kagan less qualified to rule on an upcoming case to determine, say, the “constitutional validity of statute capping non-economic damages and its retrospective application.”
But she’s apparently not gay — or so goes the word on the semi-official Washington street — which severely limits her options.
If she’s not a lesbian, she can’t come out of the closet, because she’s not actually in the closet.
If she’s not gay, she can’t really deny being gay — without implicitly suggesting there’s a problem with being gay. This recalls the famous Seinfeldian not-that-there’s-anything- wrong-with-that construct. It also recalls Janet Reno’s long-ago need to deny that she was a lesbian.
If Kagan is straight, she’s, well, like every other Supreme Court justice that we know about — except that she’d be the first 50-year-old, softball-playing, never-married woman with a short haircut and (I’m told) a bias toward plaid to become a Supreme Court justice.
Innuendo has a place to flourish and grow. It has the Internet and talk radio and certain corners of cable TV news. But if Kagan were publicly gay, I’d like to see someone on the Senate Judiciary Committee try to make an issue of it.
If this is funny — it’s funny-sad, anyway — that’s because, according to my calendar, it’s 2010. And although the military is waiting until 2011 to move into the 21st century — when “don’t ask, don’t tell” is expected to end — many of the rest of us have already gotten there.
In fact, in 2010, when Laura Bush goes on Larry King to hawk her memoir, she comes out in favor of gay marriage. No one’s jaw so much as drops. People’s sexual preference is so close to becoming a non-issue — unless, that is, you play for the Focus on the Family team — that we’ve had to turn back to illegal immigration, that old standby, as a point of electoral-season demagoguery.
And yet, when the Wall Street Journal does a story on Kagan and uses a photo of a younger Kagan playing softball, the story breaks out of the blogosphere and out of segments of the Bill O’Reilly show — O’Reilly claiming America has the “right to know” how Kagan’s sexual orientation might affect her judicial reasoning — and into the mainstream.
Some in the gay-rights community claim the softball image is a stereotype and a signal. And although the Journal denies any such intent — can’t a bat sometimes be just a bat? — we end up with a semi-serious debate on this issue.
It is summed up neatly by Steven Colbert, who warns that “in college, many girls experiment with softball.” What’s sad about all this is that in 2010, Kagan and the White House still feel the need to reply to the whispers and rumors and innuendo — giving far greater power to the story than it deserves.
Some gay-rights activists have called for her to come out of a closet that her friends say she’s never been in. And when a conservative blogger wrote on a CBS News site that Kagan would be the Supreme Court’s first “openly gay” justice, a White House spokesman denied the “charges” — as if Kagan actually had to answer this, uh, charge.
Meanwhile, Kagan sent friends out to tell the media she isn’t gay. As evidence, we’re told by these friends that while in law school, Kagan dated men there and that she and her roommates would discuss the “cute” guys on campus.
How much more demeaning can this conversation get? Well, try this: Elliot Spitzer said that though he didn’t date Kagan when they were in college together (there’s a plus for Kagan’s resume), she did date some of his friends. If she’s good enough for Spitzer’s friends, doesn’t that make her good enough for America?
Not everyone is buying that case. Kathleen Parker, the Pulitzer- prize-winning columnist for the Washington Post, questions Kagan’s ability to understand “ordinary Americans.” Parker doesn’t mention sexual preference. Kagan’s problem, Parker writes, is that she’s from New York and also that she’d be one of three Jews (who apparently don’t understand ordinary folk) on the Supreme Court. Real America, Parker writes, is where girls walk by the Baptist church on the way to ballet lessons — and what can a Harvard- trained New Yorker like Kagan know about that?
I’m pretty sure they have Baptist churches in New York. And last I heard, some Jewish girls there take ballet. Some, I’m guessing, even go to ballet class and do their demi-plies just before heading out to play shortstop on the old American softball field.
Mike Littwin writes Sundays, Wednesdays and Fridays. Reach him at 303-954-5428 or mlittwin@denverpost.com.
