That awkward “lesbian question” -

That awkward “lesbian question”

Andrew Sullivan isn’t winning a lot of friends by challenging Supreme Court nominee Elena Kagan on her sexual orientation


Andrew Sullivan isn’t winning a lot of friends by challenging Supreme Court nominee Elena Kagan on her sexual orientation. If all you see is headlines like “Answer the lesbian question, Ms. Legal Eagle”, you’re likely to write this new crusade off as evidence of the brain-porridgification Sullivan exhibited during his earlier “Show us the afterbirth, Madam Vice-Presidential Candidate” campaign. Not (quite) so fast!

…the White House reiterated last week that questions about sexual orientation “have no place” in judging a nominee (but her gender most certainly does). Quite how you defend this argument—from a president whose own criterion for nominees is a real experience of how law can affect ordinary people—is beyond me. It is also beyond most ordinary people out there.

The Obama administration embraced identity politics with the appointment of the “wise Latina” Sotomayor; now, with Elena Kagan, it is putting forward a Supreme Court candidate who appears to have almost no relevant public identity of any kind at all. It would be one thing if she had a long and detailed record of legal philosophizing or judicial rationes, but it appears that even Kagan’s friends aren’t too clear on her principles or on the fine details of her personal life. It’s a little weird; we not only don’t know whether or not the Republic is getting a “wise lesbian”, we don’t know what her basic ideas about the rule of law or the Constitution might be. (It’s only weird because it is happening south of the 49th parallel, of course. Up here senior appellate judges tend to explode instantly into being out of an impenetrable biographical void.)

This is naturally frustrating for Sullivan, who doesn’t, deep down, appear to believe there is any kind of politics other than identity politics. He is serving, and not for the first time, as the wild-eyed radical who takes a popular idea to its logical conclusion and tests it to destruction and beyond. Americans, by and large, probably don’t want a system in which a candidate for the Supreme Court is quizzed on the most intimate details of her life and personality. “Madam Solicitor-General, have you ever allowed a biologically male person to fumble awkwardly with the clasp of your brassiere, and if so for how long and on what dates?”

But Sully’s on board! Having faced odious intrusions into his own privacy, he is willing, even eager to extend to everybody the rules under which he has hitherto been forced to live.

And, ultimately, he has a point: if we accept the premise of identity politics, then we are going to need honest, detailed information about the identities of those who propose to rule—about the “life experiences” that they “bring to the table”, to use the childish liberal argot. Sotomayor was a fountain of such dreck until she came, unprepared, to the attention of an audience skeptical of identity politics—an audience, that is, who sees the “wise Latina” stuff not as a harmless toasty-warm piety, but as a tendency that would, if unopposed, turn government into an irrational contest of identity groups, an exercise in token-counting.

Sullivan’s Palin issues make more sense once you see him as an identitarian ultra-radical. He was unwilling to take Palin at her word concerning matters in which there was no really good evidence of lying and no convincing natural explanation for lies. He smelled a specific rat that almost no one else has yet detected. Why, even granting appropriate leeway to his editorial intuition, would he react so strongly to the sort of distasteful childmongering we’ve accepted from politicians for a hundred years or more?

Simple: if identity is to be everything in politics, then lying about one’s identity, adding artificial “richness” to one’s experiences, is the gravest sin. It makes the golden ticket of victimhood/otherhood available for a dangerously small price to brazen liars. The scrutiny to which we subject candidates for office—especially if they have no objective way of demonstrating their talent, intellect, or seriousness—must correspondingly be very intense, in a Sullivan World.


That awkward “lesbian question”

  1. What gives Mr Sullivan the right to demand "Answer the lesbian question, Ms. Legal Eagle"? Because, as your wiki link points out, he is an American citizen wannabe? Or because he's a gay citizen of the world, and therefore he's suitably qualified?

  2. that would, if unopposed, turn government into an irrational contest of identity groups, an exercise in token-counting.

    Are you suggesting, with a straight face, that this has not happened already?

    • Identity politics weren't present when only white straight men were considered suitable? Right.

  3. While Ms. Kagan's sexual orientation may not be relevent to the question of her ability to sit on the highest court in the United States… Her honesty about this issue, most definately is. The Obama Administration is trying to portray any questions with regard to this, as homophobic while insisting too that Ms. Kagan is not gay. Seems to me that they can't have it both ways.

    • Her honesty about this issue, most definately is.

      It is a private detail not relevant to her professional qualifications. She should not have to answer if she does not wish to.

      • Precisely.

  4. If you read the other Atlantic writers' blogs, you can tell they're starting to regard Sullivan as the crazy relative locked in the attic — best not to be spoken about at any length.

  5. When journalists have been dean of Harvard law school, they may question the qualifications of Ms. Kagan.

    • What a ridiculous argument, that's like saying, once Mike T has been Prime Minister of Canada, then he may question the qualifications of Mr. Harper.

      • No, I like this rule! Starting immediately, I'll be deleting all comments from people who have never appeared on the masthead of Maclean's.

        • While it'd undoubtedly give the conversations more substance, I expect that's not what Roger's accounting department is concerned with.

        • Great post! Some data to consider: "While gay men tend to vote Liberal and lesbians back the NDP, Canada's homosexual population is united in its opposition to the Conservatives, according to a new report.

          A study conducted by the Laurier Institute for the Study of Public Opinion and Policy (LISPOP) found just 7.3% of homosexual men and 10.4% of gay women supported the Conservatives in the 2006 election. By comparison, 40.7% of straight men and 32.4% of straight women voted for the Conservatives.

          "Clearly, they are anti-Conservative," said Barry Kay, a professor at Wilfrid Laurier University and LISPOP researcher. "The hostility there is dramatic … these are numbers that are worse than the NDP gets in much of the country."…Not surprisingly, 90% of gays and lesbians support same-sex marriage, compared with 48.9% of the general population.

          The report also found that nearly 40% of gay voters cited morality issues such as same-sex marriage as well as abortion as their top concern in the last election, compared with less than 10% of the straight population.

          Which raises the question: who is imposing whose morality on whom?

          • people tend not to be supportive of organizations which harbour those who hate them for dumb reasons. Black people tend to not think too much of the KKK, for example.

          • In the same way that the SCOC "read in" sexual orientation in the Charter without it actually being enumerated, I'm going to take the liberty of "reading in" your equation of the CPC and KKK as a "Godwin". You, therefore, fail, badly, I might add:

            Prime Minister Stephen Harper…is being hailed as a gay rights hero—in Uganda. “He's a human rights activist,” said Brown Kiyimba. “Harper is a liberal guy,” added Emmanueil Turinawe. Both men are from Uganda's gay community…Until recently, the Prime Minister of Canada never registered on the radar of most gay Ugandans. But at last November's Commonwealth conference in Trinidad and Tobago, Harper had a private meeting with Uganda's President Yoweri Museveni. He gave him his two cents' worth on the anti-gay bill.

            Shortly after, the East African leader told BBC News, “The Prime Minister of Canada came to see me and what was he talking about? Gays.” For the first time, Museveni talked of the need for “extreme caution” about the bill because it had become a foreign affairs issue…Gay and lesbian Ugandans were thrilled. .. other world leaders have followed, including U.S. President Barack Obama.

            But Harper's criticism has also caused a backlash in Uganda. The country's vice-president even accused him of “fuelling homosexuality.”

            Some KKK member! Time for some people to grow up and accept reality: Harper is not an enemy of homosexuals.

          • Conservatives have a hate problem they need to address. Start talking when you've got it solved.

          • Man, you've got to get a handle on this whole "You're allowed to speak when…" thing.

          • Harper's pandering abroad isn't what I judge him by.

          • And if he does something abroad that you consider wrong (like some feel about denying abortion funding), does that not count either?

          • The emphasis is on pandering, not abroad. Interestingly enough, he signed the agreement on Maternal Health in Italy last year which included safe abortion.

          • "Clearly, they are anti-Conservative"

            They're not anti-Conservative, they're in support of parties whose policies they prefer. Sheesh, what a load of cheap martyrdom. If the Conservatives tried as hard to woo homosexual voters as they do immigrant voters, they would have made similar headway by now.

            "who is imposing whose morality on whom?"

            I fail to see how enabling two guys you've never met to marry each other is imposing my morality on you, except in the most abstract sense. But it seems pretty obvious that preventing two guys you've never met from marrying each other is imposing your morality on them, in a very tangible way.

        • I would think one expects the comments sections to be a hodge podge in terms of quality anyways. It's the masthead that might need more looking into (ahem, M. Steyn…)

      • There's actually something to that prime minister argument, there's just no effective way to put it into practice.

        I do suppose I should have said "credibly" question. Remember, if you're seriously being discussed for a supreme court justice here or in the U.S. you are almost certainly qualified (even with that failed Bush nominee notwithstanding). I don't pretend to be able to vet appointments for the best surgeon general and wax wise about it, fo rinstance.

        • We can accept that her resume qualifies her for consideration, but it doesn't automatically mean there isn't an
          even better candidate out there.

          Also, while being a Harvard Dean is certainly prestigious, it's a administrative/management position, and therefore more of resume highlight for applying to Cabinet, not the Suprem Court.

  6. Glen Greenwald is better on this topic — he is more exercised about the total lack of a track record on any of the major issues of the day. As for Sullivan, he used to be opposed to outing — except when he says so. Which is how it goes in Sullivan World!

  7. "The Obama administration embraced identity politics with the appointment of the “wise Latina” Sotomayor"

    Is that true? I seem to recall that the 'wise Latina" comment was dug out of old speeches and not anticipated by the White House.

    • Yes, dug out of LOTS of old speeches, the way one might "dig" occasional instances of Gary Coleman mugging and saying "Whatchoo talkin' 'bout, Willis?" out of the TV show Diff'rent Strokes. If they didn't anticipate it, why didn't they?

      • I just did some digging – woo, you're right, she said it a LOT!

        • Practically a catchphrase, as Colby points out.

      • It seems to have been viewed by the White House as a feature, not a bug.

  8. Who cares what Andrew Sullivan thinks?

    After the UN headquarters in Baghdad got blown up, the guy wrote the Iraqi insurgency was a good thing because it meant US soldiers could fight Arabs in the Iraqi heartland, rather than in the US heartland like Iowa or Utah.

    He actually managed to write something stupider than the original decision to invade Iraq. The guy gets paid for his opinions and his opinions are almost always wrong.

    The problem really is that stupid, irresponsible people like Andrew Sullivan are prominently published and even celebrated.

    I remember Mark Steyn writing that Baghdad was safer than Surrey in the UK. How is he still working?

    The problem is crap magazines like MacLean's employ journalists who think things like the riots in Parisian Bonlieus are the result of ugly, brutalist architecture. It is no surprise then, that the magazine publishes headline-grabbing, sensational idiocy.

    You don't like identity politics? You work for a magazine which actively promotes identity politics as a way of understanding the world. You think Andrew Sullivan is bad? He is terrible. And he would fit right in at MacLeans.

    • How do you figure that Macleans"actively promotes identity politics as a way of understanding the world."? Evidence, please.

  9. How do you figure it's not?

    Evidence please.

    How can someone who works at a magazine that publishes the kind of crap MacLeans publishes, criticize another journalist, even one as terrible as Andrew Sullivan.

    It's beyond middle-brow and dipping into tabloid.

  10. As I've said before, Kagan's sexual orientation has no relevance to her competence as a Justice. It should not even be discussed, whether in her favour or against.

    The point stands, however, that if we are going to appoint people based on identity politics then sexual orientation suddenly becomes relevant….in fact it becomes the only relevant consideration in Kagan's case since her other identity qualifications (race and gender) are already represented on the court.

    One would like to think that this brings us to a reductio ad absurdum in which everyone chuckles and says "See? This is why identity politics in judicial nominations is so stupid," rather than "This is why we must know intimate details like the candidate's sexual orientation and history." As Sullivan clearly demonstrates, however, our society is now at a point where proceeding willingly ad absurdum is perfectly normal, or at least somewhat normal. It may even be the Obama Administration's policy.

  11. This piece is really interesting in places, but in others it seems unfair and unnecessarily nasty, to the point of obscuring the subtlety of the issues.

    I mean, I would agree that much liberal (and conservative) discourse is pretty lame these days, but it isn't childish to believe "life experiences" are important. Pretty much everyone who has studied the process of judgement ends up basically agreeing more with the liberals/Democrats than the Scalias/originalists on this. On the one side you have Aristotle, Gadamer, Arendt, and Kuhn, who all generally agree that judgements can only be made against an imperfectly shared social background. On the other, you have Kant, who is has been mercilessly grilled for 200 years on this. So it isn't really fair to characterize one side as childish when the other is generally similarly so – it's just that one has contemporary political supremacy. I mean, given that 90% of republican operatives scream "original text" while they condone throwing Jefferson out of schools, and ignore that the original bill of rights never even extended to the states, well then the arguments are childish all 'round.

    This isn't to say that I like what the Democrats are doing. I didn't like Roberts, and I'm not a huge fan of Kagan for the same reasons. But the cheap shots here are both unnecessary and misleading.

    • I heard Kagan isn't a huge fan of yours either. And Roberts just plain doesn't like you.

      I don't think it's as neat as you make it. Demos always do identity politics and are philosophically wedded to it. While Republicans never do. As you point out, Republicans are only originalist when it suits their needs and Democrats deny they are engaged in identity politics at all. (What was Bush's West Texas Ranch but an exercise in right-wing identity politics?)

        • I..don't know what to say. What is the point of satire in a world where this is real?

      • :) Well then I guess the bad vibes are mutual!

        I wasn't trying to make anything neat. If I did it was unintentional. Are the Democrats more wedded to identity politics? I'm fairly skeptical there – I see elements of it all through both the left and right – as you say, Bush's ranch and Palin's "real Americans" are fairly strong in-group/out-group codes. My intended point was that these things are subtle and messy, and that this piece seems to gloss over this in its rancor.

        • I agree.

          Bascially the problem is Colby's attempt at honest writing.

          I found his attempt to take down of Andrew Sullivan a bit like watching a kettle throw rocks from the pot's glass house from inside its private solarium — to mix a couple metaphors.

        • Sure, Palin and Bush play to the heartland crowd… but there is no designated place for such people on the Supreme Court. For the first time ever the SC has no Protestants… and the MSM's reaction is to say that "religion just doesn't matter much anymore."

          It's like at my college, where some animals are more diverse than others.

  12. For the record, Kagan has an incredibly extensive paper trail with over 160,000 pages of records (from the conservative Volokh Conspiracy.)

  13. Who cares if she's gay – what I want to know is if she's bilingual.

    • Exactly!

  14. Identity politics seems like something only a socialist could dream up. Got to make sure that every minority is properly represented. Her private life is irrelevant to the job at worst and having a slightly different perspective on life at best.

  15. Identity politics in one sense is very old hat. For example, any cabinet in the Saskatchewan legislature has 'required' someone of Ukrainian descent for more almost a century. It is ensuring that your particular interests are heard by handing out political and bureaucratic appointments to someone who looks and thinks like you. Patronage in other words.

    This seems to be slightly different in that it involves a group of outsiders selecting someone to fill an arbitrary notion of "diversity". It works out to much the same thing as it was in the past (where you trade support for patronage) but it is less a matter of representative democracy, and more about fulfilling the social theories of an elite.

    So I don't really think identity politics are a threat per say, but a consequence of democratic disengagement and leaving things up to our aristocrats in government. If we want to undo identity politics, simply revive political engagement and patronage. Trusting a benevolent elite to select philosopher-kings to hold offices is never going to happen, so why expect it?

  16. Mr. Sullivan is entitled to his own opinion. But based on his past performance, he seems to be all too eager to malign or twist the truth to fit his own often misguided opinion–without the facts first having been served.

    What relevance, pray tell, does Ms Kagan's sexual orientation have in a serious debate on her qualifications to the Supreme Court? Other that is than Mr. Sullivan's own bigoted assessment which is the illegitimate offspring of his own sexual status to which we are all largely indifferent to!

    Straighten up and fly right, Andrew as we will soon be forced to use your boring story as platter for our canaries' breakfast. A more fitting use I can't immediately think of. Can you?