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On the Media: The debate over Elena Kagan's sexuality

Most mainstream news organizations aren't questioning the Supreme Court nominee's sexual orientation, but that's not stopping the Internet, cable TV and tabloids.

May 15, 2010|James Rainey

Supreme Court Justice-designate Elena Kagan, have I got a fella for you! He's quiet, scholarly and not bad looking. He knows a thing or two about those folks you hope to join on the highest court.

And David H. Souter, who retired from the Supreme Court last year, certainly could commiserate with you about how the media work their magic on anyone foolhardy enough to try for a seat on the court while in an unmarried condition.

It's been two decades since the mainstream media gave Souter a relatively muted once-over, airing and then rejecting rumors that the New Hampshire judge was gay. Over the last week, Kagan has been living the full-volume sequel as the Internet, cable TV and tabloids insist she is either a lesbian or an inexplicably single 50-year-old, which to some seems to be the same thing.

Distinctly missing from the recent Kagan baiting — filled with patter about her short hair, tendency toward plaids and apparent affinity for (Great Sappho's Ghost!) softball — has been any actual evidence that she is a lesbian and, more important, any good reason to think that her sexual orientation is crucial to the kind of justice she would be.

Most newspapers, wire services and television networks somehow have resisted the temptation (yes, with the exception of media criticism like this) of joining in this feeding frenzy. Big mainstream news organizations simply don't see news here. They have taken a nearly unanimous pass on the story so far.

In exercising something called news judgment — so passé to bloggers and others who only nominally occupy the same profession — the traditional media make some calculations many of the newcomers don't. They try to decide not just what's rumored, but what's true; not just what's interesting, but what's important; not just what the audience wants, but what it needs.

That may make the old-schoolers, by some accounts, out of touch, quaint and more than a little pompous. By my estimate, it also makes them distinctive, authoritative and trustworthy.

Newer media opinion makers may trash the traditionalists, but they care — oh, they care a lot — about what the mainstream media are doing. So do the U.S. senators who will determine whether to confirm Kagan, currently the U.S. solicitor general, to the Supreme Court.

They will find it much more difficult to raise the question of Kagan's sexuality when the news editors of the New York Times, Associated Press, National Public Radio, three television networks and many other big news outlets, including The Times have decided, at least for now, that it does not matter.

I'm guessing the big media will remain on the sidelines when it comes to Kagan's personal life, even with (no pun intended) strange bedfellows like liberal blogger Andrew Sullivan and conservative Fox News commentator Bill O'Reilly agreeing that the issue is very important.

Sullivan, writing for, argues it would "be bizarre to argue that a justice's sexual orientation will not in some way affect his or her judgment" on issues likely to come before the court, presumably such as same-sex marriage. The questions about Kagan arise, Sullivan wrote, because "we have been told by many that she is gay."

O'Reilly declared that "Americans have a right to know if their Supreme Court justice has an orientation that may or may not dictate which way she votes on a vital issue. "When guest Sally Quinn suggested Kagan's sexual orientation is her personal business, O'Reilly responded: "How do you know it doesn't get in the way of her judicial decisions?"

Did I miss it when O'Reilly worried whether the heterosexuals on the court have let their sexual orientation cloud their decision making?

And speaking of the straight justices, just how straight are they? Many experts believe that human sexuality exists on a spectrum. Did today's happily married heterosexual judge have a youthful dalliance with a member of the same sex?

How far do we want to take this? Maybe we should also ask every justice-designate how many homosexuals they have known and what they felt about them. And Justice-designate Alito or Breyer, while we're at it: Spend much time in a Turkish bath? Did "Gladiator" arouse certain, uh, feelings?

Without knowing a thing about Kagan's sexuality, we already have a pretty good idea about her feelings about civil rights for gays and lesbians. She has called the military's ban on homosexuals "a moral injustice of the first order." There's a hint.

The speculation has been slowed not a whit by the White House's statements denying Kagan is a lesbian or by the statements of a college roommate, and still close friend, who said Kagan always has been interested in men.

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