If Elena Kagan isn’t a lesbian, she’s about to have her feelings hurt. The Solicitor General and Supreme Court nominee is a former dean of Harvard Law School, served as an Associate White House Counsel under Clinton, and otherwise—as our disturbingly uniform national media points out—has a mighty thin paper trail. She’s never sat as a judge, so we can’t pore over her rulings to determine whether she’s going to require abortions in church or allow mean dogs wearing American flags to preside over secret terrorist trials or whatever. Her academic writings are well-regarded but also famously technical. And you can’t tell anything about her just by looking, either. Nope—not one thing. She’s like an empty vessel, or maybe a vase with a calla lily in it, or one of those orchids by Georgia O’Keefe. She has emerged freshly formed into the national spotlight from Obama’s side like Eve, or Lilith. Maybe more like Lilith Fair.
I assume that you got tired of that before I did. If you liked it, then you’ll love the Wall Street Journal, which ran as their front page image yesterday a 17 year-old picture of Kagan playing softball. The Journal claimed to mean nothing by it, but the photo of Kagan at the plate said she was a lesbian as clearly as her rolled-up denim shirt over a henley said it was 1993. The White House has declined to comment on her sexuality. “It’s not anything I’m going to get into,” said Press Secretary Robert Gibbs, before adjusting his tie and adding, “but you can ask her about it, if you want. She’s down by the river, preventing flooding.” Then he looked around expectantly and seemed annoyed that no one got it.
William Saletan at Slate worries that the issue-that-can’t-be-discussed-beacuse-it’s-not-an-issue of Kagan’s orientation could Bork her. He reminds us of the 1987 confirmation train wreck that was Robert Bork, a Reagan nominee who foundered on the shoals of his unspecified agnosticism. When rumors arose that the evil-bearded legal scholar didn’t believe in God, he declared his right to privacy and let a pack of Christian Democrats tear him apart. Had Bork declared himself an agnostic and challenged his Senate inquisitors to prove that it made him a poorer judge, we might have had one of the most interesting discussions in recent historical memory. As it was, Bork’s refusal to answer left the question at whether he was or wasn’t, and the American public always knows that you are.
Barack Obama knows about Robert Bork, and—if I may engage in one more kind of stereotyping—I bet he knows a lesbian when he sees one. We’re not talking about your great aunt, here, or John McCain. Obama could have chosen any number of judges, professors or attorneys, but he went with the one about whom you can say very little, except that she appears to be gay. He had to know this was coming. The whirring 24-hour national press was only going to run with the “very little paper trail” story for so long. I never thought I’d say this, but Elena Kagen’s gayness is a choice—a choice by President Obama, and when seen in that light a tactically brilliant one.
The Republican Party was going to mercilessly attack anyone he chose. Their position, dressed up in whatever arguments fit the situation, is that the Obama should not be allowed to do anything—especially put a justice in the Supreme Court. Consider the email I got from Tea Party Nation on Monday, which said almost nothing about Kagan herself and railed against Obama’s radicalism, which must necessarily be reflected in any of his nominations. “Contrary to the myth that is repeated by certain Republicans,” it concludes, “the President is not entitled to his nominee.” The Tea Party is the right-hand edge of American conservatism, but it reflects the only sentiment of any vitality in the GOP today. In choosing his SCOTUS nominee, Obama chose who his opposition party would attack.
In choosing Elena Kagan, he has also chosen what they will attack. Unlike Bork’s putative atheism, Kagan’s sexual orientation is—sorry guys—visibly present without being named. The White House and Kagan herself can say nothing about it and still be guarantee that the question will be answered implicitly in the press, if not explicitly in the mouth of some unfortunate southern senator. When that happens, the GOP will be forced to assess just how much the American public is afraid of gay people. If their record is any indication, it’s the assessment they are least skilled at making.
The spectacle of Republican Senators gay-baiting a 50 year-old lesbian with no girlfriend will not be good for the party. The GOP will almost certainly find that people are less scared of homosexuals than they thought, and particularly less scared of lesbians. Going after Elena Kagan for being gay won’t work. Even if it does somehow, it will force the Republican Senate to again expose itself for what it is: a relentlessly oppositional association of straight rich dudes, bent on running American government with the membership requirements of a country club.
In Kagan, Obama has chosen not so much a judicial philosophy as a political target. Her confirmation hearings will force the Republican Party to answer the question, “What about a white lesbian?” and Obama’s imprimatur will force them to answer, “no.” When that happens, people across America will briefly consider the corollary question: What about me? The Republican Party claims to represent real America. With the nomination of Elena Kagan, the President is forcing them to start saying who’s real and who’s not.