David Brooks sees a perfect student on the perfect stealth career path:
About a decade ago, one began to notice a profusion of Organization Kids at elite college campuses. These were bright students who had been formed by the meritocratic system placed in front of them. They had great grades, perfect teacher recommendations, broad extracurricular interests, admirable self-confidence and winning personalities.
If they had any flaw, it was that they often had a professional and strategic attitude toward life. They were not intellectual risk-takers. They regarded professors as bosses to be pleased rather than authorities to be challenged. As one admissions director told me at the time, they were prudential rather than poetic.
If you listen to people talk about Elena Kagan, it is striking how closely their descriptions hew to this personality type.
She keeps everything close to the chest:
One scans her public speeches looking for a strong opinion, and one comes up empty.
What we have is a person whose career has dovetailed with the incentives presented by the confirmation system, a system that punishes creativity and rewards caginess. Arguments are already being made for and against her nomination, but most of this is speculation because she has been too careful to let her actual positions leak out.
There’s about to be a backlash against the Ivy League lock on the court. I have to confess my first impression of Kagan is a lot like my first impression of many Organization Kids. She seems to be smart, impressive and honest — and in her willingness to suppress so much of her mind for the sake of her career, kind of disturbing.
And speaking of her focus on image management, Andrew Sullivan defends his evolving view on closeted and de-closeted gays. I have to take his side here - whatever Sullivan may have thought in 1991 has surely been overtaken by subsequent cultural shifts.
I also agree with him that the idea that she is entitled to simultaneously keep her sexuality a secret while pursuing a lifetime appointment to our highest court is daft. Geez, who's Obama's next pick, Greta Garbo? If Ms. Kagan wants to preserve her privacy, she shouldn't seek such public positions.
Let's wave in Joe Conason for the "Don't Ask" side:
According to Andrew Sullivan, "it would be bizarre to argue that a Justice's sexual orientation will not in some way affect his or her judgment of the issue," although precisely how the orientation will affect the judgment he cannot tell us. But even if Sullivan's reasoning is weak...
Uh huh. Yet Obama has repeatedly emphasized the importance of biography and life experience, both in voting against Roberts and nominating Sotomayor. Any number of libs (presumably including Conason) believe that, for example, a black brings a different perspective to the court. Yet now it is weak reasoning to suspect that a closeted gay judge would have distinctive views on one topic or another?
Let's think out loud here - suppose Ms. Kagan is in fact gay (we've heard the rumors, but who knows?). Why is she keeping quiet? Well, maybe she thinks that outing herself will close various professional doors (I have heard the rumor that her orientation cost her the Harvard Presidency.)
So that suggests her thought process is what - 30% of Americans will never accept me as a judge, so I will just lie to them? For the next forty years? And neither the National Enquirer nor anyone else will out me?
Please - the Supreme Court won't need the sort of crisis of legitimacy that would ensue if she misrepresents her sexuality, is seated, and is then outed. The message that sends is deplorable. And by the way, if she really does believe that she will never be accepted by an important slice of the public, that reveals a great deal about her. If she doesn't trust the American people, why should we trust her? And did Thurgood Marshall figure that since there were bigots who would never accept a black judge it would be better if he did something else?
OK, let's re-think this: maybe she has no intention of lying (she hasn't yet), and is simply hoping no one will ask. That might work - I assume the left is gearing up to denounce as a bitter homophobe anyone, including Andrew Sullivan, who does ask. As Sully noted, the NY Times is not even going to admit that there is an issue. As members of the liberal elite, the Times is quite comfortable keeping certain types of secrets from the Great Unwashed.
This ongoing secrecy creates its own problems, since a person with a something to hide is a person susceptible to pressure. I suspect Ms.Kagan's "secret" is a somewhat well known in Harvard Law circles. So wouldn't that that create an opportunity for aggressive attorneys (pardon my redundancy) to gain a bit of an inside track with business before the Supreme Court?
I assume it won't be anything as crude as "Vote our way now or you're outed" blackmail. I picture something like this: "Hello, Elena, I just saw [ex-secret lover's name] last week and she says hello. And I do hope you will take a long look at our very careful and well-reasoned brief requesting a Supreme Court review of our appeal. I'm sure you'll find our arguments compelling..." And she will get the hint.
That can't happen? Or she would have reviewed their brief anyway? Well, maybe the appearance of impropriety at the Supreme Court will never develop. Maybe!
So where this is headed, if Ms. Kagan is confirmed while closeted? She will spend forty years handing down gay-friendly rulings most (or hopefully, all) of which are utterly unobjectionable to conventional liberals. And we will have to spend forty years with the media studiously ignoring her orientation and pretending that her being gay has nothing to do with her decisions. And that view will be eminently defensible, since plenty of straight liberals would have reached the same decisions.
But it will still be forty years of BS and forty years of the liberal elites keeping secrets because the rest of us can't be trusted with the truth and forty years of people muttering that judges can crawl all over our lives but we can't talk about judges. This is not a great way to run a democracy.
My guess - her hearing won't normally be for eight weeks, which is several forevers in media time. The Administration will hope she gets outed before then, and may even give the process a nudge. I don't see the Senators wanting to let this hearing turn into a circus, but I don't see them all agreeing to duck this, either. So the bombshell will be defused before the hearings.
But my other guess is that Team Obama can't possibly want to ignite a culture war the summer before the election. Their current position is a mix of "Trust us" and "You rubes can't handle the truth". That strikes me as unsustainable. But is "She's gay, get over it" the winning ticket for the Dems? Especially when, if the revelation follows two or three weeks of tooth-pulling, it will come off as, "She's gay, get over it you bigoted homophobes! We were only blowing smoke for your own good!"?
OK, I'm baffled but not undecided! My Bold Prediction - Ms. Kagan is either outed or out before she gets to the hearings. Her withdrawal announcement will be awkward, since she can't say she wants more time with her family. But we won't start her hearings with this issue unresolved.
LEST I FORGET: Eugene Volokh praises her scholarship, which is encouraging.
UNCONVINCING! From Stephanie Mencimer of Mother Jones:
The weird thing about all of this was astutely pointed out by one of Sullivan's commenters, who noted that the ever cautious, drama-free Obama would be uncharacteristically stupid to lie about something so easily discoverable as whom Kagan has slept with.
Right, because Obama has never lied about anything that could easily be discovered by our watchdog press. For another view, I'll open the bidding with his Bill Ayers entanglement. The original story was that Ayers and Obama had kids in the same school; later Ayers was just a guy from the neighborhood, then a guy Obama had met when Ayers hosted Obama's first fund-raiser and political coming-out. Eventually (and these were not state secrets) we learned that Obama and Ayers were working together on the Chicago Annenberg Challenge prior to the fundraiser. Obama had probably been hand-picked by Ayers based on a previous relationship, but the official story has not yet unraveled to that point yet. And, not by coincidence, no one at the NY Times or Mother Jones has any interest in establishing the actual truth, as opposed to ObamaTruth.
I wouldn't be shocked if the White House vetters just never considered the question of Kagan's sexuality to be appropriate (although if Rahm was involved it's hard to see him being shy...). And I am sure Obama figures he can bully the press into silence on this one; so far, he has the NY Times so cowed they won't even mention the rumor, let alone the denials.
And speaking of those White House denials, here is the Kurtz column airing them. Here we go - first, we hear from Anonymous Source:
An administration official, who asked not to be identified discussing personal matters, said Kagan is not a lesbian.
Compelling! Then Anita Dunn, not officially with the White House:
CBS initially refused to pull the posting, prompting Anita Dunn, a former White House communications director who is working with the administration on the high court vacancy, to say: "The fact that they've chosen to become enablers of people posting lies on their site tells us where the journalistic standards of CBS are in 2010." She said the network was giving a platform to a blogger "with a history of plagiarism" who was "applying old stereotypes to single women with successful careers."
And Ben LaBolt, who is with the White House:
A White House spokesman, Ben LaBolt, said he complained to CBS because the column "made false charges."
If the "No, she isn't" story changes the only White House official who might be poised for a ride under the bus is LaBolt, who can claim he was misinformed. Or is there wiggle room there? Maybe "Not a lesbian" means she has a bisexual history. In any case, there is nothing here from Obama.
And how does Ms. Mencimer characterize these denials? She calls them "unambiguous statements from the administration that Elena Kagan is most definitely straight." Well, maybe she has different statement in mind; if she could provide a link that would be lovely.
This will be our media in action, saving the judge from the Great Unwashed.
TO WHICH I SHOULD ADD: If Ms. Kagan is gay and out, good for her. We appointed black judges with complete confidence that they would be asked to judge civil rights related cases, that they might bring a special perspective, and that their might be some bigots deeply opposed to their presence on the court. Obviously, having a stealth black candidate who refused to address the question of his race is hard to imagine, but the principal of addressing real or imagined bigotry head on should apply.
I have lost the link but some silly right wing site claimed Ms. Kagan was unqualified because she was gay. Wrong, and I dissociate myself from their remarks. (Geez, I am like Johnny Profile in Courage, repudiating comments I can't even find or link to... Developing!)
However, I am not interested in enduring forty years of a liberal media tap dance.
All that said, if she is not gay, I really don't know how she will prove it. No videotape, please! This is the sort of problem that could have been resolved back in the day when we had a trusted media or some trusted politicians who could look us in the eye and expect to be believed when they vouched for her. Oh, well.
INSHALLAH: From AllahPundit:
If identity’s that important to judicial philosophy in the liberal imagination, then by Obama’s own standards, Kagan’s identity should be fair game. Problem is, as fun as it’d be to watch him squirm over this, to press him on it would jeopardize a moment when most of the right and left seem prepared to ignore the ambiguity about Kagan’s orientation and judge her on her qualifications. That seems like a good place for society to have reached; it ain’t “she’s here, she’s queer, get used to it,” but “she’s here, she may be queer, and it’s no big deal” ain’t beanbag. Do gay-rights supporters want to endanger that sentiment with an identity politics passion play at the hearings, replete with a Category Five media clusterfark?
I agree that the Senators will push hard to avoid a clown show at the hearings (one Thomas/Hill debacle, complete with panels of character supporters and assassins, is enough for several lifetimes), but I don't think "She's closeted, we can't talk about it in polite society for fear of riling the rubes, move on" will fly.
STILL WAITING: Has anyone yet said that Ms. Kagan is being "swift-boated"? Just a matter of time! And its fine by me, since for righties, "swift-boating" basically means "swamped by inconvenient truths the liberal media would rather ignore".