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May 11, 2010

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boris

ISTM some can be a little too easy with what the public has no right to know.

bgates

The question of whether Roberts was gay was raised. One response was here.

See also here for a conservative who noted a few Kossacks wanted to "out" Roberts' four-year-old son.

JM Hanes

Cecil:

"But I'm having a hard time with the "not pertinent" non-argument, especially since nobody appears willing to defend it."

I've been having a hard time with your "pertinent" non-argumen toot, when Kagan's orientation is irrelevant to your judgment on the Harvard DODT/Recruiter issue. Since you didn't address my question on the Massachusetts Supreme Court, I'm left with the logical assumption that the sexual orientation of the Justices would not affect your judgment of that ruling either. You have asserted pertinence, but (at the time I undertook this reply), you've not offered much in the way of an explicit defense of that proposition yourself.

If you (in the general sense) believe that sexual orientation is predictive, then you essentially agree with Obama on the importance of personal biography and judicial demographics. I don't care if a Justice is Catholic or Jewish or Atheist or Black or Gay. I think the predictive problem is not Kagan's unconfirmed orientation, it's that we have almost no paper trail of decisions to work with. Justice Thomas, of course, was far more "likely" to be a liberal. Gay conservatives don't fit the working profiles either. It's what they do, and what they defend that tells us what we need to know. How much time did we spend slicing and dicing Sotomayor's sexuality? Even her Latina biography would have been largely uncontroversial, if Obama hadn't tried to sell that package and Sotomayor didn't have a history of associating /representing groups like La Rasa, and long standing habit of touting the judicial superiority of Latina women.

I'm living proof that supporting gay marriage is not synonymous with arguing that it's a Constitutional right. When Kagan unequivocally states there is no Constitutional right to gay marriage, I don't automatically assume she's a liar because she's a liberal, as far too many in the blogosphere elsewhere are contending, and I don't believe her presumed sexual orientation somehow makes it more likely that she is.

Absent such assessments of reliability, I don't see how her orientation bears on the answers she has, and will, give to the questions she is posed. I simply don't believe that asking the nominee to explain how her personal sexuality plays into her judicial philosophy tells us more than asking if she sees a Constitutional right to gay marriage, and then moving on to the Commerce Clause.

It seems to me that a public "right to know" Kagan's orientation is not really at issue here, but rather a presumed right to speculate, and that, IMO, does not justify an extremely sensitive breach of privacy. If no such breach were implicated, there would be no material issue. That's why my #4 differs from your #1. Whether or not there is a justifiable trade-off (e.g. lifetime appointment) depends on whether or the most invasive of all possible questions tell us substantively more about the nominee's approach to Constitutional issues than any other questions we can ask. I don't believe they do. YMMV.

I hope that qualifies as the defense you were looking for. I doubt it will change your mind, even though I admittedly suck at mindreading, but there it is. I'm sorry I didn't have more time to condense this tome, but I trust I didn't let the personal outrage I feel over the issue of outing obscure this last case for discretion I felt worth making.

boris

We have to know everything so we can tell when she is being a hypocrite. Duh!

JM Hanes

Editing for clarity, I would replace:
**a presumed right to speculate** with
**a presumed right to fodder for speculation.**

JM Hanes

LOL, boris! I could have saved myself a lot of time, couldn't I?

Cecil Turner

I and many others say that not everything in one's background, including consensual sexual behavior, matters.

This isn't asking about her recent lovers, it's about her orientation. Which according to most gay folks is an inalterable, integral part of their personality. If that's right, why is the question impertinent?

If you (in the general sense) believe that sexual orientation is predictive . . .

Does it have to be predictive? If it informs the general person on the candidate's personality, is it not pertinent? I'd remind you that this is a venue wherein candidates' video rental histories have been scrutinized (more than once). Is orientation less informative?

I simply don't believe that asking the nominee to explain how her personal sexuality plays into her judicial philosophy tells us more than asking if she sees a Constitutional right to gay marriage, and then moving on to the Commerce Clause.

I'm less than impressed with the idea that a fundamental part of a person's personality is off-limits because it may cause some consternation amongst bigots. And I really don't want to find out after the confirmation battle is over that she's gay and now beholden to a lot of Administration and journo personalities who helped her hide it.

I trust I didn't let the personal outrage I feel over the issue of outing obscure this last case for discretion I felt worth making.

The outrage comes through loud and clear, but I think it's misplaced. She wasn't "outed" by political enemies . . . she was celebrated by gay blogs. Moreover, I don't see why this should be a reason to select her for some groups and hidden from everyone else. I don't have a problem with her being a cause celebre with the gay rights crowd, but that doesn't mean folks who will likely have heartburn with her views (e.g., religious fundamentalists) must be kept in the dark.

JM Hanes

I'll content myself with imagining Justice Scalia's reaction had he been asked, for the record, whether he was bisexual or straight in his nomination hearing.

Ellie Light

Kagan is just what we should expect from our Obamao.

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