Why Won’t Elena Kagan Stop Outing David Souter?

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05/11/2010 11:59 AM |

Is this the face of a homosexual former Supreme Court Justice?
  • Is this the face of a homosexual former Supreme Court Justice?

Here’s Slate’s Dahlia Lithwick and Emily Bazelon arguing against making an issue out of what are perhaps only assumptions about Elena Kagan’s personal life:

Elena Kagan isn’t a Supreme Court justice nominee yet, but her sexual orientation has quickly become the topic of whispers about whisper campaigns; of a groundless lesbian outing; and then of a strong White House refutation. So goes the life of a shortlister for a Supreme Court vacancy in this age of no-holds-barred 24/7 news/blogs/tattletales. We can’t help thinking back, with some nostalgia, to those gentler 1980s days when David Souter’s unmarried status caused him no such public grief—even after he was nominated and up for confirmation.

For the first graf of a serious-minded argument against rumor-mongering, that Souter bit sounded hella wink-wink, didn’t it? All this talk about whether the new Supreme Court nominee is gay has had the side effect of sparking talk about how a recently retired Supreme Court justice was actually gay all along.

To be clear, there is a difference: the Kagan talk seems to come from that weird digital-age private-public crossover where people are out in their day-to-day lives but officially have no comment on the matter, and then people who know or have heard leave comments on blogs. Whereas with Souter, from what I can discern, the talk seems to stem mostly from his “unmarried status.” Unless this is a British obituary, and “lifelong bachelor” is just code for “everyone knows he’s so incredibly flaming, constantly.”

A fun game to play: every time a piece goes up addressing the subject of Is she gay, Does it matter either way, Should she have to answer the question, is to count how many paragraphs in before the writer brings up Souter as a prior example of somebody whose orientation was an open question, or how many comments before some wag states his orientation as a fact. It’s almost like we as a culture are unhealthily fixated on a personal attribute that would be less noteworthy if more people were open about it, which they probably would be if we were less unhealthily fixated on it!