Kagan: Don't ask, don't tell

Supreme Court Nominee Elena Kagan Continues Meeting With Senators

Talk about don't ask, don't tell. Pretty much the moment Elena Kagan was nominated by President Obama to fill a vacancy on the Supreme Court, the questions started swirling. Few online seemed all that concerned with her politics or her understanding of constitutional law. "Elena Kagan husband" became a major Google trend, and it seemed a lot of people just wanted to know why Kagan, at the age of 50, was still single.

Could it be that Kagan would be not only the high court's fourth female member but it's first lesbian? As the AP said yesterday, in a lede that was most unkind to Jenny Finch et al.:

She plays softball. Huge hint, right?

She's 50, single and has a short haircut. Yup, definitely a lesbian.

The real question, though, is whether it matters. If it doesn't, why do we care. And if it does, why are media outlets doing so much beating around the bush?

More from the AP, in a story that goes on to recount other political gay rumors:

It's a sign that, in a nation where gayness is as mainstream as ever, sexual orientation is still a delicate topic for anyone in America, across the spectrum of beliefs and politics.

"Even the leadership of the Democratic party is still uncomfortable handling the issue," says Kenneth Sherrill, a political scientist at New York's Hunter College who specializes in the politics of gay and lesbian rights.

"They don't know how to handle the question with a 'So what if she is?'"

And should we even be asking, anyway?

That last question is a bit shocking. Journalists ask inappropriate questions all the time -- in fact, it's one of the best workplace benefits. Rarely do journalists filter these questions based on whether or not they are even relevant, let alone appropriate.

"In a free society in the 21st century, it is not illegitimate to ask," wrote Andrew Sullivan, a gay blogger for The Atlantic. "And it is cowardly not to tell.

Sullivan has been beating this drum awfully hard. A column he wrote the Times of London, demanded in the headline: "Answer the lesbian question, Ms Legal Eagle." And Jim Rainey, who I was a bit hard on last week, reminded us that similar rumors swirled about David Souter when he was nominated to the court in the '80s.

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 passe 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.

I like Rainey's argument. It's sober media criticism. But I have to disagree with him.

This is a story -- and not just a story about how it's not a story, or a story about how lesser journalists are rumormongering. It's a story because it is very, very, very likely that the Supreme Court will soon hear challenges to laws like California's Prop. 8, and will most certainly hear many gay rights cases over the time Kagan, who could easily serve 30 to 40 years on the court, sits on it.

Regardless of whether you think a gay or lesbian perspective on the bench would be a good thing or a bad thing or a nothing -- after all, most of the landmark decisions giving equal rights to African Americans were issued before the court got its first black justice -- it is something that major media outlets should be asking about.

Please respect our Commenting Policy