Commentary: Kagan's sexual orientation is nobody's business

The Kansas City StarMay 14, 2010 

"So is she gay?" gay conservative commentator Andrew Sullivan inquired in his online column, The Daily Dish.

Gawker.com was even more direct, asking: "Is Supreme Court nominee Elena Kagan really a lesbian?"

And an article on the Christian News Wire went so far as to demand that Kagan fess up "because the public has a right to know."

Yeah, well, if I were Kagan, I'd tell the whole lot of them to go suck eggs.

Fact is, the public doesn't have a right to know everything about public figures, even appointees to the highest court in the land.

Sometimes just asking certain questions is offensive.

Yet what began last month as a whisper campaign is now "about as subtle as a sledgehammer," Washington Post media critic Howard Kurtz concluded this week.

It's become the biggest non-story story so far of this nomination. It's all over the blogosphere and on cable networks from Fox News to Comedy Central. Now it's started moving into the mainstream media, including papers like the Atlanta Journal-Constitution, the Boston Herald and The New York Post.

Personally, I don't know or care whether President Barack Obama's choice for the high court is straight, is a closeted homosexual or has a thing for redheaded midgets.

What's it matter? The sexual orientation of a judicial nominee should have nothing to do with his or her suitability for the post. According to an ABC News/Washington Post poll, 71 percent of Americans think a nominee's sexual orientation is irrelevant.

It's all about that person's qualifications for the job and approach to the law.

Sullivan and others disagree, saying every aspect of one's personal life should matter.

But even the leader of the Conservative Committee for Justice told the Boston Herald: "It's her political and constitutional orientation that is relevant, not her sexual orientation."

You know what's most disturbing of all? The focus on Kagan's sex life suggests that other members of the Supreme Court have sex lives, too. Ew.

Luckily, only rarely has the sexuality of Supreme Court members been a matter of wide discussion or speculation. The Clarence Thomas nomination is the most notable exception, with its allegations of sexual harassment.

And then there were the gay rumors about retired justice David Souter because he, like Kagan, never married.

Lucky for him, his 1990 confirmation predated all this Internet stuff. Even so, it was out there, and Souter never honored the questions with an answer.

Neither should Kagan.

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