The Sexist

Who Did Elena Kagan Take To Prom, and Other Exercises in Heterosexism

Andrew Sullivan wants to know, once and for all, if Supreme Court nominee Elena Kagan is gay. He writes:

we have been told by many that she is gay ... and no one will ask directly if this is true and no one in the administration will tell us definitively. In a word, this is preposterous—a function of liberal cowardice and conservative discomfort. It should mean nothing either way. Since the issue of this tiny minority—and the right of the huge majority to determine its rights and equality—is a live issue for the court in the next generation, and since it would be bizarre to argue that a Justice's sexual orientation will not in some way affect his or her judgment of the issue, it is only logical that this question should be clarified.

To Sullivan, Kagan's sexual orientation "should mean nothing either way"—except that her sexual orientation will necessarily be instrumental in shaping a generation of civil rights law. Sullivan goes on to cite a Jeffery Toobin reader, who Sullivan says asks "the obvious question" on the nominee: Did Kagan bring a date to Toobin's wedding, and was it a woman?:

Mr. Toobin, did Ms. Kagan bring a date to your wedding? Why can't we discuss this matter? If she were married—to a man—there would not be silence. Would there be if she were married to a woman? Would she be nominated if she were?

That's right: "The obvious question" to ask of a nominee for the United States Supreme Court boils down to, essentially, who she took to the prom. I don't disagree that diversity on the court is extremely important, and that these demographic concerns can have a very real effect on how the law of the United States is interpreted. But Sullivan—and Toobin's reader—have got it backwards.

If Kagan were married to a man, there would not be any silence on the details of her family life. There would, however, be complete fucking radio silence on the idea that her heterosexuality has any effect on her judgment on an issue like same-sex marriage.

Kagan has been nominated to a court with a history of confirming overwhelmingly white, heterosexual, Protestant, male nominees—nominees whose white, heterosexual Protestant maleness has seldom been scrutinized as a contributing factor in their interpretation of the law. Of the 111 judges who have served on the Supreme Court, 108 have been white, 108 have been male, and zero have been identified as anything other than heterosexual. But somehow, race and gender only spark concern when a judge like Sonia Sotomayor is nominated; a justice's sexual orientation will only irrevocably affect American history when she just might not be straight.

Like Sullivan, I'm looking forward to a time when we can talk openly about what it might mean to appoint a lesbian judge to the U.S. Supreme Court. But more than that, I'm looking forward to a time when we can talk openly about what it means to appoint a man to the Supreme Court, or a white person, or a straight person, or a Christian. Until that day, Kagan isn't a coward for keeping her sexual orientation private. She's just expecting to be treated with the same respect afforded to the 111 Supreme Court justices who have come before her —justices whose sexual orientation was never considered a political issue.

Photo via Wikipedia Commons

  • Gradually Greener

    You might want to amend the Protestant part. If Kagan is confirmed, there will be zero Protestants on the court. It's certainly true that in the more distant past there was a history of confirming Protestant nominees. But in recent years it's been mostly Catholics and (to a lesser extent) Jews.

  • Amber

    a court with a history of confirming overwhelmingly white, heterosexual, Protestant, male nominees

    Not that it isn't a recent development, but Kagan's appointment means there won't be a single white hetero Protestant male on the SCOTUS. And we often talk openly about what it's meant to appoint Catholics to the Court, insofar as their faith might affect their position on Roe, the death penalty, etc.

  • Mrs. D

    Damn, I took my sister-in-law as my plus one to a wedding once. I suppose I'm barred from being a Supreme Court justice at the moment.

  • Amanda Hess

    The history of the Supreme Court is overwhelmingly Protestant---91 Supreme Court justices have been Protestant. The recent trend away from that is interesting, but doesn't change the history. (I'm also waiting for a Muslim and an atheist). And Amber is right that Catholicism does not come without scrutiny on the court---Catholics are scrutinized for their religious beliefs far more intensely than other Christians, who are considered the Default.

    Obviously, the demographics of the Supreme Court are changing in more than that one way---we we've got another non-white Justice now, and may see three women on the court soon. That doesn't mean that the intensified scrutiny for justices who don't fit the historical mold has disappeared.

  • kza

    If someone makes it as far up the ladder as a a Supreme Court nominee, you would think they are very objective people and it wouldn't matter what orientation they are. I would like to think someone in her position would be able to see issues from every point of view.

  • MissaA

    Since the issue of this tiny minority—and the right of the huge majority to determine its rights and equality...

    WTF??? No, the majority does not have a "right" to determine the rights of a minority. That's the very nature of a right - you have it, no one gets to determine it for you. You can argue about what certain rights mean, or when they arise, or whether they exist in general (ex. do human beings have a right to clean water?), but not whether or not a particular group has them.

    That's not only an ignorant thing to say, it's irresponsible to perpetuate the notion that the majority gets to circumscribe the rights of the minority.

  • Charlie

    There used to be speculation the David Souter was gay. But as the years have gone by and no boyfriends or girlfriends have come out of the closed I have come to think he is probably asexual. Now there is a minority that doesn't get much consideration.

  • Native JD in DC

    Can we get a Native American atheist attorney on the S.Ct...preferably me.

  • Jen

    I was so frustrated by Andrew Sullivan's perspective that I had to wonder, does this guy know what it's like to make a personal decision regarding the discussion of your own sexuality? Turns out he does, or should: he self-identifies as a "bear" ( and married his partner in 2007. All of these choices -- to proclaim his orientation online, to wed a man -- are things that he felt empowered to make for reasons that are entirely his. If someone else, under a different set of circumstances and with a different personal history, chooses NOT to go public, it behooves us not to fucking call her "cowardly". As a queer woman of color, it really pisses me off that a white male (with all of the privilege that entails) is passing this kind of judgment on a person who may not feel empowered to make the same decision he was able to make. Or not! The point is that she shouldn't be under such scrutiny in the first place! I wholeheartedly agree when you write, "...a justice’s sexual orientation will only irrevocably affect American history when she just might not be straight."

  • Richard

    "I’m looking forward to a time when we can talk openly about what it means to appoint a man to the Supreme Court, or a white person, or a straight person, or a Christian."

    I'm not sure they do have it backwards.

    The point is that things like being heterosexual, white, male, etc all have a hegemonic place in our society. How else are you really supposed to challenge these privileged positions than place them in contrast to those less privileged identities?

    In other words, I am not sure if I really understand how Sullivan's challenge to clarify her sexuality (the reason this has come into focus one way or the other I suppose is something to be critical at the media about) is problematic in that it will challenge exactly the sorts of structures you are against if she does not fit into the hegemonic identity. It is precisely by bringing up these issues that we can simultaneously challenge the court make up as well.

    On a side note, Bush did get a good bit of trouble for his white male nominees, which is why you can find clips of Alito explaining his tough working class roots and his empathy.

  • Jessie

    To go off on a tangent, I really don't get the term "heterosexism." I mean, I understand from context what it means, I think? Also, I just googled it. It still kind of baffles me, though. How does a word that sounds like nothing other than a smoosh up of "heterosexual" and "sexism" come to be a simile for homophobia? Homophobia from hetero people, sure, so it does make sense how the hetero bit got there, but it still sounds like it means sexism against straight people. Weird term.

  • Dominique

    You know, SCOTUS has no Muslims, Mormons, Buddhists or Scientologists on it either. And last I heard, as others have noted, no one ever raised a shitstorm over all those heteros bringing their vested interests onto the bench.

  • Tom Degan

    Elana Kagan is a bit of a disappointment. Although she has more-than-a-few positives that qualify her for that position, she is hardly the Liberal firebrand I was hoping for to counterbalance the the five extremist twits on that court who are trying to destroy American democracy.

    The good news is that she does not have much of a paper trail so there won't be much for the Conservatives to complain about....What am I saying? Of course they'll find something to complain about. They always find something to complain about. They complain a lot. Did you ever notice that?

    Tom Degan
    Goshen NY

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  • ed

    Janet Napolitano was her date ?

  • Gary

    Hess points out that Sotomayor's race and gender "sparked concerns" when she was nominated - what she doesn't point out is that Sotomayor's race and gender were factors that helped her stand out from all the other equally qualified choices. Perhaps Hess fails to recall Sotomayor herself claiming that her race and gender made her exceptionally qualified - the "wise Latina" statement?

  • K

    Gary, the tradition of having a "representational" SCOTUS goes back to the beginning of the Republic. Time was, the justices had to be evenly balanced between Northerners & Southerners, and later Westerners, back when the "litmus test" was all about slavery, stance on. Religious affiliation was also important, with the court often having a spectrum of Protestant Christian denominations, from Baptist to Quaker.

    While the idea of American diversity has grown more inclusive, not less, "diversity" on the bench has always been a political issue. Would you have complained when a (white)(male) Southern justice was nominated to maintain a geographical balance back in 1807, at the expense of many qualified Northerners? No? Then why complain in this century that justices are *still* selected based not only on their qualifications, but their ability to represent all the diverse viewpoints of the Republic they are sworn to serve?

  • Paul S

    Thurgood Marshall and Clarence Thomas are both black, so not all 108 male Justices have been white. Not surprisingly, with the exception of Sandra Day O'Connor, all minorities and women have been appointed by Democrats.

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  • Thomas MacAulay Millar

    Amanda, you said it better than I did. Well done.

    Also, you and I will both be old and gray (I'm getting close!) before we see an openly atheist judge. Atheism polls more negatively than almost any other ideology or demographic. A Muslim or even a Wiccan would be easier to confirm that an open atheist.

  • Julie Westfall

    Isn't this really more about the fact that Elena Kagan has never been married or had children than anything else?

  • DirkJohanson

    Paul S.,

    You are mistaken - Clarence Thomas was appointed by a Republican: Bush 41.

    Also, what makes a light-skinned Latina like Sotomayor any more of a "minority" than an Italian-American (two appointed by Republicans)is beyond me.

    Anyway, I'd like to propose a novel idea, or perhaps one that has simply been discarded over time: appointing the best available candidate, regardless of whether the color or their skin, parents' religion, sexuality, gender, or favorite breakfast cereal.