Elena Kagan's name was on nearly every shortlist that was published in the days following Justice John Paul Stevens' announcement that this term would be his last on the Supreme Court. In the weeks that followed, there was a fair amount of speculation about Kagan's sexual orientation. CBS blogger Ben Domenech wrote, almost in passing, that she would be the "first openly gay justice." But is she gay? The White House quickly shot back at CBS after Domenech's piece ran, with spokespeople saying that CBS was "posting lies on their site" and that Domenech "made false charges." For his part, Domenech fired back that "her female partner is rather well known in Harvard circles."
But I'm not interested in whether she's gay. I'm interested in whether it matters. Conservatives clearly think it matters. For conservatives, being part of any minority group apparently means that you'll have trouble deciding issues fairly because of your identity, as if the jurisprudence of white men isn't at all affected by their identity. We saw all this during the Sotomayor nomination hearings, and I suspect we'll see it again.
Why does it matter to liberals? And should it? There seem to be two schools of thought. The first is, "It doesn't matter, so we don't need to know," as Emily Bazelon and Dahlia Lithwick argued in Slate. The second is, "It doesn't matter, so why is it a secret?" as argued by Andrew Sullivan. Well, it might matter not because it makes her unfit to serve on the Court, as conservatives might suggest, but because it will make her better suited to be a Supreme Court Justice. After all, that was the substance of Domenech's original point: Liberals would be happy if Obama nominated someone who had the potential to be the first gay justice.
The diversity theory of Supreme Court justices holds that it's important to have people of varying backgrounds on the Court. Since issues of discrimination come before the court on a regular basis, having women, and people of color, and gay people, on the court will advance liberal objectives because those people will make better decisions on cases involving invidious discrimination against minorities than those who have never experienced it.
But that puts a wrinkle in the assertion that if Kagan is gay, it makes her a better pick than if she weren't. Because it seems that if she's gay, she's not "out," that is, she doesn't claim that she's gay, and it's not public knowledge. So she hasn't really faced the kind of discrimination that is at issue, since she those around her aren't necessarily aware of her sexual orientation.
Liberals want to have it both ways. They want to assert that it doesn't matter but also that it does matter. It doesn't matter because we want to live in a world where being gay doesn't make you ineligible for the nation's highest judicial office. But it does matter in the same way that Obama's candidacy as an African American mattered, because someone's got to be the first. It matters because it says something about us as a country, whether this is something we get completely tied up in knots over, or whether we shrug our shoulders and move on. It doesn't matter because it shouldn't be a requirement that you disclose who you have sex with before you serve in any office. But it matters because in many professions, you still do.
Far be it from me to assert which of these sides should win out. But we need to ask, not just in Kagan's case but for all people in public life, whether and how sexuality matters. It's far from an easy question to answer.