“[We] respect your obligation not to comment on certain matters but I hope that you will understand that in light of your lack of written record on major issues, it is our obligation in this hearing to attempt to insure that you do not prove as great a surprise to President Reagan as Earl Warren was to President Eisenhower.”
–Chuck Grassley at the confirmation hearing of Sandra Day O’Connor
O’Connor did not serve on the federal bench before being appointed to the Court. She had, however, been a state judge in Arizona, as well as Majority Leader of the Arizona State Senate. The current nominee, Elena Kagan, has even less of a record than O’Connor. Much kerfuffle has been, is being, and will continue to be made over Kagan-as-unknown-quantity. What does she believe? How will she rule? I wonder these things, too. I think they’re reasonable things to wonder. Now, a Supreme Court nominee will only answer certain kinds of questions: O’Connor avoided discussing how she would rule but happily gave her personal views on abortion and busing. She insisted, of course, that those personal views would have no bearing on her rulings. Okay, yeah, whatever. That’s the game. They can play that game with Kagan. I hope they do. But! But! It’s a ridiculous waste of our necessarily limited time on earth to demand to know if she has sex with ladies.
There’s a teapot tempest right now over just that: Elena Kagan’s sexual orientation. I blame Mad Men and Dexter; they are on hiatus, and everyone is starved for entertainment. Lots of people have said stupid things about Elena Kagan’s sexuality, but I’m going to focus on Andrew Sullivan because why not. His opinion is: the public has a right to know if Kagan is a lesbotron. My opinion is: go fuck yourself, Sullivan.
Sullivan says that Kagan’s sexuality “should mean nothing either way.” Okay, so far, I really agree. Sullivan and I would probably also agree that, in reality, a person’s sexuality does mean something. For example, queer people are more likely than straight people to believe that queers are people. No guarantees, though! Also, some people (straight and otherwise) definitely hate queers, in a really visceral way. These are some of the things that it means. Still with me, Andy? Well, here’s where we diverge: you think that her sexuality “should mean nothing either way” and so she should be forced to declare her sexual identity on the steps of the Lincoln Memorial to the tune of John Ashcroft’s classic “Let the Eagles Soar.” I think her sexuality “should mean nothing either way” and so LEAVE IT. JUST LEAVE IT.
Does my belief speak to my “liberal cowardice,” as Sullivan calls it? I don’t think so. My main objections are that: 1) a public discussion of sexuality is only expected of people whose sexuality is “in doubt”; that is, people suspected of queerness, 2) conventional indicators of sexuality are useless, and 3) I am sick of treading water in the Gay-Straight Binary Ocean. These three concerns are, I trust you will notice, inter-related. Whee!
Andrew Sullivan quotes a commenter on Jeffrey Toobin’s New Yorker piece: “Why can’t we discuss this matter? If she were married - to a man - there would not be silence.” Well, actually, if she were married to a man, there would be silence. That’s the problem. If she were married to a man, everyone would assume she was straight, and there would be no questions about her sexuality.* This burden falls only on the presumed-queer. And here we are, in the land of diminished privacy and respect. This is where every minority group lives. People who look white are not asked if they’re mixed-race. People who look cis are not asked what their real gender is. People who appear to be in heterosexual relationships are not asked about their sexuality. It is insulting to expect some—and only some—people to explain their identities to strangers. It is insulting to suggest that only minority identities require clarification. It is insulting to imply that dominant is the default. White people aren’t the norm. Straight people aren’t the norm. Where fundamental issues of identity are concerned, either no one is regular, or everyone is.
Putting respect and equality and all that liberal commie bullshit aside, another problem with taking “has a husband” as evidence of a woman’s straightness: it doesn’t work! It’s stupid and useless. One can be married to someone of the opposite sex and still be totally gaybones. Maybe your husband is a beard. Or maybe he’s not, and you’re really into him, but every other person you’ve ever been attracted to is a woman. You can be queer but in a “straight” relationship. NEWSFLASH OH NO EVERYONE IS SHOCKED. Knowing the name of someone’s partner tells you so little about that someone’s sexuality that you might as well have stayed home and kept your mouth shut.
This is all to say, to journalists and senators alike: ask Elena Kagan the right questions. Ask her the things that are relevant to the kind of justice she will be.
*Okay, there might be questions, because she’s a powerful woman (see also: the Secretary of State).
