Like all nominees for an influential office, Elena Kagan’s life has been put under a microscope since being named as President Barack Obama’s pick to the nation’s highest court. That in itself is not unusual. But what disturbs me is the tone of some of these veiled, and not-so-veiled, attempts to raise doubts about her Supreme Court candidacy. Last week, Kagan’s sexual orientation became a focal point, with some demanding the solicitor general explain why she is unmarried.
Like all nominees for an influential office, Elena Kagan’s life has been put under a microscope since being named as President Barack Obama’s pick to the nation’s highest court. That in itself is not unusual. But what disturbs me is the tone of some of these veiled, and not-so-veiled, attempts to raise doubts about her Supreme Court candidacy.
Last week, Kagan’s sexual orientation became a focal point, with some demanding the solicitor general explain why she is unmarried. When the Wall Street Journal — owned by uber-conservative Rupert Murdoch, whose holdings also include Fox News — ran a photo on its front page of Kagan playing softball in 1993, some gay rights activists accused the paper of pandering to the prevalent stereotype linking lesbianism and the sport.
The WSJ denied those allegations, and if they’d left it at that I might even have believed there was no malice behind their choice of art. However, The New York Post, also Murdoch-owned, promptly picked up the baton and ran the photo with the headline “Does this photo suggest high court nominee Elena Kagan is a lesbian?”
To me, that decision certainly appeared to be made solely to stir the pot and signal to other conservatives, many of whom seem to have an irrational fear of homosexuals, that, horror of all horrors, a gay person might be poised to take a seat on the Supreme Court.
But the fact of the matter is, whether she is lesbian or straight is a private matter, not tabloid fodder. It is also not something any of us — lawmakers or the public at large — have any business speculating about with unfounded innuendos.
Kagan’s treatment also reeks of sexism. When President George Bush Sr. nominated David Souter to the Supreme Court, I don’t recall anyone speculating about the never-married jurist’s sexuality. Like Kagan, Souter’s positions on controversial issues were largely unknown. So with those two factors being equal, what was the difference between Souter’s nomination and Kagan’s own?
The most obvious is their genders. Despite the fact that this is 2010, it seems many in the country still view an unmarried woman of a certain age as suspicious, whereas a confirmed bachelor is more often perceived as a charming rake ... a ladies’ man who is just too much man for one woman to handle.
As a single woman in her early 30s, my love life has also been the subject of scrutiny. People often assume there must be some underlying reason for my lack of a spouse. Other single girlfriends of mine have also endured the invasive questions and the looks. It couldn’t possibly be that we just haven’t met our soul mates yet, and are unwilling to settle.
You see, all too often society is unnerved — men in particular — by a strong, independent woman who is able to make a home, and a life, for herself. Thankfully, I have wonderful parents who have taught me I can stand on my own.
Rather than speculating about what Kagan’s singlehood means, we should be embracing her decision to live life on her own terms. Like any single adult, I’m sure Kagan would love to meet the right person and start a shared life together.
But her decision to wait until it’s right should be applauded. Far too many rush into a relationship or marriage simply to avoid being alone. In some respects, it is an easier path. But it’s also a recipe for unhappiness.
Whether Kagan is gay or straight doesn’t really matter. What does matter is what kind of justice she would be. Kagan’s credentials — she was the first female dean of Harvard Law School, as well as the first female U.S. solicitor general — seem to indicate she is more than qualified. And while she has never sat on the bench herself, she clerked for Justice Thurgood Marshall on the Supreme Court, as well as federal Appeals Court Judge Abner Mikva. And keep in mind, William Rehnquist was nominated to the court after serving as a lawyer for the Nixon administration. Despite having never been a judge before joining the Court, Rehnquist went on to become chief justice.
So if we accept that she is indeed qualified, the questions we must then ask are: Is Kagan fair? Does she have a mastery of constitutional law? If the answers to those questions are yes, then there shouldn’t be any question as to her ability to serve as the third sitting female justice on the U.S. Supreme Court.
Amy Gehrt may be reached at firstname.lastname@example.org.
The views expressed in this column are not necessarily those of the newspaper.