Before I came upon this exchange among Kevin Drum, Andrew Sullivan and Glenn Greenwald about whether Elena Kagan has a duty to reveal her sexual orientation, it wouldn’t have occurred to me that she, or anyone else, could have such a duty. I’m finding myself unexpectedly sympathetic to Sullivan/Greenwald’s position that, if Kagan’s a lesbian, we’re entitled to know about it.
Let me take a stab at getting to the heart of the Greenwald/Sullivan/Drum argument. Greenwald/Sullivan contend that, since Kagan’s sexual orientation (as opposed to her sexual conduct) may well affect her votes on certain important cases, democratic citizens contemplating her nomination have a right to know what it is. Drum doesn’t deny that knowing about Kagan’s sexuality would tell us something about how she’s likely to vote on cases that may come before the court (most obviously, cases that turn on the constitutionality of the Defense of Marriage Act or California’s Proposition 8). But Drum insists that our genuine interest in full disclosure is overridden by the fact that, like everyone else, Kagan has a right to decide what intimate facts of her life to reveal publicly.
It surprises me that I think Greenwald and Sullivan are getting the better of this argument. That’s not because I doubt that, under normal circumstances, people have a right to keep their sexual orientation to themselves, but because I think these circumstances aren’t normal. If Kagan doesn’t want the world to know about facts pertinent to her judicial performance she shouldn’t put herself forward for a lifetime appointment to the Supreme Court, especially by accepting a Supreme Court nomination from a president who touts her “life-experiences” as a qualification for the job. Having accepted it, Kagan has arguably waived any right she might otherwise have had not to disclose facts pertinent to predictions about her judicial performance.
Believing, as I do, that it’s a crucial part of a judge’s job to keep her sexual orientation from affecting her judicial decisions doesn’t make her sexual orientation any less relevant to our judgment about whether she should sit on the Supreme Court. Indeed, if anything, that standard of judicial impartiality argues for disclosure because not every judicial candidate subscribes to it, or succeeds in living up to it.
On the one hand, if you think Kagan does embrace, and will live up to, that standard of impartiality, her sexual orientation shouldn’t matter to you. But knowing about it shouldn’t impair your capacity to reach a reasonable decision about her confirmation either, unless you’re surrendering to your own anti-gay prejudice. If that’s the case, it’s your job to get over it. If, on the other hand, you think Kagan shouldn’t or won’t embrace that standard of impartiality, or worry that she might not live up to it even if she does, not knowing about her sexual orientation will arguably make your decision about her confirmation less reliable than it would otherwise be from any point of view.
The only way to get around Greenwald/Sullivan’s conclusion I can see is to deny a point that Drum concedes, viz., that Kagan’s sexual orientation is not just a relevant, but a material, fact about her nomination. Let’s be a little more precise about what it means to call a fact “material” in this connection: a fact is “material” relative to a particular decision insofar as a reasonable decision-maker would want to know it. This definition leaves open the possibility that a fact can be relevant without being material. It might be reasonable for us not to want to know a relevant fact if we think that everyone’s knowing it will do more harm than good (and we can’t arrange for its being disclosed to us without being disclosed to everyone else).
In the present case, although we believe that knowing something about Kagan’s sexuality would help us reach a better decision about whether to make her a Supreme Court Justice, we might still not want to know about it because we think its being widely known will make it harder for Kagan to be effective on the bench. You might think, for example, that having the world know about her sexuality would create an appearance of partiality when she ruled on cases about same-sex marriage. Were she to rule in favor of same-sex marriage, some social conservatives would undoubtedly conclude that she’s playing favorites in an essentially political contest. Were she to rule against it, some social liberals would undoubtedly explain her decision as a matter of self-loathing, overcompensation or judicial hypocrisy. Whatever she does, a significant number of people will use her sexual orientation against her.
All of that’s true, of course, but hardly decisive. For one thing, charges of partiality go with the territory: liberals never tire of saying that conservative judges are shilling for corporate interests; conservatives never tire of saying liberal justices are commissioned officers in the culture war. It’s part of a judge's job not to care.
For another, Kagan doesn’t really have a choice about keeping her sexuality from being an issue. We’ve passed the point where her silence would enable her to benefit from the default presumption of heterosexuality. Now, her silence will only keep people guessing and invite more charges of partiality down the road. Worse, should facts about her sexuality come to light after she's confirmed, she’ll be open to charges that she secured her place on the Court fraudulently by failing to disclose a material fact.
For my part, however, the most revealing thing is that my best argument for denying the materiality of Kagan’s sexual orientation amounts to surrendering to other people’s prejudice. It’s like saying that, although I think a person’s being gay is immaterial to whether he or she should be a soldier, I don’t think we can afford to repeal Don’t-Ask-Don’t-Tell because a lot of soldiers are bigots. There comes a time when arguments like that amount to an inexcusable concession to bigotry.
You might still think that, because we haven’t yet reached that point with respect to judicial nominations, it’s excusable for the administration and Kagan to spare themselves the grief that disclosing her sexual orientation would invite. But, along with Greenwald and Sullivan, I think we reached it some time ago.