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Posted by on May 11, 2010 in Law, Politics, Society | 0 comments

Does Kagan’s sexuality really matter?

Elijah has up a very interesting post about one nominee and four justices who were suspected of being gay. Yet while I agree that Kagan’s alleged preferences are hardly a first, she would, if gay, inevitably become the first openly gay justice on the Court.

On a personal level, I don’t have any problem with that. Yet the White House is setting itself up for a fall if Kagan is gay, since it would seem like the President was hiding vital information from the American public. Yes, in an ideal world no one would care who is gay. But in the real world, where issues like gay marriage may come before the court, it is dishonest to withhold such information.

Andrew Sullivan writes that

In a free society in the 21st Century, it is not illegitimate to ask. And it is cowardly not to tell.

John Tabin responds that Sullivan has done an about face over the years, having written in 1991 that “there is little moral difference between a straight person forcing one to hide one’s identity and a gay person forcing one to declare it.” Sullivan replies that time have changed and so have his opinions:

[Homosexuality] has become one of the most vital questions before the courts. Whereas two decades ago, there were virtually no openly gay figures, there are now countless, especially lesbians.

If you believe that individuals have a right not to be outed, it’s completely irrelevant how many other public figures are openly gay. But the point about jurisprudence stands. Kagan will be in a position to determine the future of gay rights.

On the other hand, we already know from her campaign against military recruiting on campus just where she stands on gay issues. There’s absolutely no secrets there.

In comparison, think about the questions we’re not allowed to ask nominees about other hot-button issues: Have you (or your partner) ever had an abortion? Do you own at least one firearm? Do you believe in God?

The confirmation process is riddled with inconsistency in which all sides are fully complicit. I don’t know if I can get upset about one more degradation of an already debased process. Besides, isn’t the haircut alone enough information?

Cross-posted at Conventional Folly

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