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Last Sunday, former Republican Senate staffer Ben Domenech published a blog post in The New Ledger in which he outlined President Obama's top ten picks to replace Justice Stevens on the Supreme Court.  In describing the pros and cons of Solicitor General Elena Kagan -- seen by many as the likeliest choice -- Domenech listed as an advantage that Obama would be selecting the "first openly gay justice."  CBS then reprinted the post on Thursday, prompting backlash from the White House, which vigorously denied that Kagan was a lesbian.  After hours of initially defending the post, Domenech retracted the claim and CBS pulled the article from its website.  Domenech also apologized to Kagan in a separate essay on the Huffington Post.

The entire episode -- from the initial rumor, to the response from the White House, to the discussion of the issue in the media -- confirms to me yet again that, even in the realm of politics, we are still a nation of juvenile adolescents.

While it is certainly trivial to have to spend any time discussing the sexual orientation of a Supreme Court nominee, I will do so briefly if only to provide a little context.  Kagan is not "openly gay."  There is no evidence to support the idea that she is "out of the closet."  Kagan has not issued any writings nor given any speeches in which she has opined about her sexuality, nor has she ever confirmed on-the-record to having a relationship with a same-sex partner.  Nonetheless, that didn't stop Domenech from posting a rumor proclaiming she would be the nation's "first openly gay justice" if selected to the Supreme Court.  Domenech himself clarified that he erroneously believed that Kagan was in fact open about her sexuality, and that he posted the claim because, as he wrote, "it had been mentioned casually on multiple occasions by friends and colleagues -- including students at Harvard, Hill staffers, and in the sphere of legal academia -- who know Kagan personally."

In other words, Domenech cited gossipy claims made by anonymous sources, then published it as though it were verified fact.  CBS didn't help matters at all by spreading the rumor even further without first checking to see if the claims were true, then removing the article without themselves printing an apology -- which is ironic, considering that editor in chief Dan Farber told The Washington Post's Howard Kurtz that in response to a controversial statement such as that, "the better approach is just to address it head-on rather than trying to sweep it under the rug."

Now, consider the following two scenarios in which it should be made clear how Domenech and CBS collaborated in a rather pathetic error in judgment:

  1. If Kagan is not gay, Domenech and CBS published a completely false claim, which would make them shoddy journalists for failing to verify if it was true before publication.
  1. If Kagan is gay, she isn't open about it -- which would not only make Domenech and CBS shoddy journalists for failing to verify if the claim was true before publication, but grossly insensitive people for publicly outing someone in the closet.

The White House's response to CBS, however, left something to be desired.  Spokesman Ben LaBolt accused the network of making "false charges," and former communications director Anita Dunn went even further by slamming CBS as "enablers of people posting lies."  The problem is, they left a fundamental truth out of the denial.  Here's what the response should have been:

"Who cares?  What does it matter if she's gay or not?"

That's a question that should have been raised from the very beginning.  It's one thing to discuss her tenure as Dean of the Harvard Law School, as well as her record defending the rights for gay men and women to serve in the military -- because that's actually an important policy issue.  Yet, even among Beltway reporters, there's still a persistent myth that rumors of Kagan's sexual orientation should even be discussed as though it were relevant.  Last Monday, Marc Ambinder of The Atlantic wrote this:

Given the confusion and rumors about Kagan's sexuality, the issue is bound to come up. It's tough for the media to cover, because reporters have trouble writing openly and honestly about a very contested subject, and because they don't want to appear to be outing anyone. There's no consensus within "The Village" about whether sexual orientation is a private matter -- or about when it becomes a public matter.

And Howard Kurtz wrote this:

Rumors invariably raise a difficult journalistic choice: whether to report on them and give them credence, or withhold them and fail to acknowledge what insiders are discussing.

Apparently, we still live in an age of journalistic puberty, where discussing Kagan's record and positions on specific legal issues takes a back seat to juvenile gossip chatter about her private affairs.  What else can we expect with a media that explodes over the latest news about what Tiger Woods did with his private parts?

For myself, I care a lot more about whether or not Kagan would be a good selection for the Supreme Court based on her credibility as a legal scholar.  I highly recommend reading Glenn Greenwald's recent piece in which he recommended against her selection due to the limited available record of her views, particularly on civil liberties issues (and, according to Greenwald, she appears to be a defender of extreme Bush/Cheney policies on detention of prisoners).  He also follows up on that piece here.

But, I have some advice for all players I've criticized in this diary.

a) To Marc Ambinder:

What a person does in their bedrooms isn't your business.  It is, in fact, a very private matter.  That others in "The Village" might not think so doesn't make exposing another person's sexuality the right thing to do.

b) To Howard Kurtz:

The topic of "rumors" should only be an important journalistic choice when the subject of a rumor deals with important government policy.  You shouldn't be giving credence to rumors if they're irrelevant pieces of gossip that aren't even supported by corroborating evidence.

c) To Anita Dunn and Ben LaBolt:

Whenever someone tries to claim that Kagan is gay, just ask them, "Who cares?"  That's all you have to do.  Rinse and repeat.

d) And finally, to Ben Domenech and CBS:

First, check your facts before submitting something in writing -- last I heard, that was an important asset of journalism.  Secondly, outing someone who may be in the closet is an incredibly careless and insensitive thing to do to another human being -- in fact, even Kurtz says that "most major news organizations have policies against 'outing' gays or reporting on the sex lives of public officials unless they are related to their public duties."  Lastly, it ain't your business.  As I'll ask again:

"Who cares?"

Update #1: Something I should clarify that I probably did a poor job of explaining the first time.  I didn't mean to suggest that the selection of the first gay Supreme Court justice would be completely unimportant.  I think doing so would be an historic selection, much like Obama's election as the first African-American President is greatly historic.  My only point was that one's sexual orientation should have no bearing on their ability to do the job -- and that the media's consistent chatter over this is more about spreading gossip about Kagan's sexuality rather than her record on the issues.

Sorry if I didn't make that clear initially.

Update #2 (1:39 pm ET): I need to head out for an engagement and will be back in a few hours to check on people's responses.  Feel free to continue discussing the issue as you would.

Originally posted to SuperBowlXX on Sat Apr 17, 2010 at 10:01 AM PDT.

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Comment Preferences

  •  Amen, Super. (6+ / 0-)

    What in the world does this have to do with someone's job qualifications?  Pooties or wozzles probably a better indicator of competence.

    (Pooties are known judicial activists.)

    •  I should clarify something (5+ / 0-)

      when I say that one's sexual orientation is "irrelevant," I don't mean to suggest that the selection of a gay Supreme Court justice would be unimportant.  If Obama were to pick a gay Supreme Court justice, that would itself be a historic first -- but, obviously, that should have no bearing on how he or she would be able to do her job.

      Wanted to clear that up in case someone mentions it.

    •  My pootie could never be on SCOTUS (4+ / 0-)

      It's not that she'd be an activist. It's the substance abuse. Yes, she's into the herb. Catnip abuse.

      Wal*Mart isn't the root of all evil but you can buy the plastic, cadmium-tainted, Chinese knock-off of it there for $4.27

      by ontheleftcoast on Sat Apr 17, 2010 at 10:18:57 AM PDT

      [ Parent ]

      •  Hmmmm.... (3+ / 0-)

        My pootie doesn't want to be on the SCOTUS.
        Why, you ask?
        He'd have to explain his 'sister', who's a MAJOR herbalist!  And activist.  And provocateur.  And she's very proud of everything she is.  As she should be!  
        He just purrs and adjusts to the sunlight....
        (He told me this whilst basking in the afternoon sun)

        I think, therefore I am........................... Plus ca change, plus c'est la meme chose AKA Engine Nighthawk - don't ask!/don't tell!

        by Lilyvt on Sat Apr 17, 2010 at 12:55:19 PM PDT

        [ Parent ]

  •  Which means the first question she will be asked (11+ / 0-)

    if she is the nominee will be:

    "Are you gay?"


    I hope her response will be:

    "None of your damn business".

    "Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity." --M. L. King "You can't fix stupid" --Ron White

    by zenbassoon on Sat Apr 17, 2010 at 10:08:28 AM PDT

  •  Hey Howard Kurtz: (3+ / 0-)
    Recommended by:
    fl1972, SuperBowlXX, stunvegas

    Rumors invariably raise a difficult journalistic choice: whether to report on them and give them credence, or withhold them and fail to acknowledge what insiders are discussing.

    Here's another choice: you could investigate further before writing anything at all about it.

    Typical guy who writes (not a journalist), who thinks it's more important to write something rather than to write something that's accurate and verifiable. Apparently his mother never told him it's rude to gossip. Perhaps he should get a job at OK! magazine.

  •  You are the one being adolescent... (0+ / 0-)

    Kagan is on the list, at least in part, because she is gay.

    WH is playing a game - pander to the LBGT community, while being coy about the real reasons.

    Grow up, this is hard-ball politics.

  •  I was amazed at the juvenile comments by (1+ / 0-)
    Recommended by:

    Republican leaders at the notion that there might be a gay nominee:

    John Cornyn: I’d have to think about that.  As long as it doesn’t interfere with their job, it’s not a particular issue.

    Jeff Sessions (R-Bigot): I don't think we should be thinking like that for the United States Supreme Court.

  •  I agree to a point (3+ / 0-)

    I too would like to live in a world where people's sexuality was little more than an afterthought. And Domenech and CBS were wrong to publish unfounded rumors, but that's another issue.

    But the first openly gay SCOTUS judge would be a big deal, and there's no getting around that. Just as Obama being the first black president is a big deal. As a sports fan, I often wonder when we'll see the first out NFL player (during his career, not after). The societal implications would be huge, and if you'll pardon the pun, game-changing.

    Just as a generation of children are currently growing up with a black president (hopefully for the next 7 years), and it is subtly affecting their worldview in a million different ways, so would an openly gay person of SCOTUS stature do the same.

    I guess to sum up my point, if a gay person is appointed to the SCOTUS, I would much rather it be open and talked about than forever a rumor.

    Harry Reid: Float like Barney Fife, sting like Aunt Bea.

    by MeMeMeMeMe on Sat Apr 17, 2010 at 10:29:41 AM PDT

  •  It will be about gay marriage. (4+ / 0-)

    That is what they are trying to start.  First they took God out of the Pledge, then they took God off money, then they took my Bible, then they took my guns, then they took my holy matrimony.

    The tea party suffers.

    Hey John Edwards, put your legal mind to work, ACORN needs your help.

    by 88kathy on Sat Apr 17, 2010 at 10:30:16 AM PDT

  •  it's like the obama is muslim b.s. (5+ / 0-)

    the worst of many parts about it is the tacit implication that being muslim or gay is bad. we're worse than an adolescent nation. we're a nation still seething with bigotry.

    The cold passion for truth hunts in no pack. -Robinson Jeffers

    by Laurence Lewis on Sat Apr 17, 2010 at 10:48:14 AM PDT

  •  It's just a shame that being an openly Gay (1+ / 0-)
    Recommended by:
    Voodoo king

    person is a factor of exclusion from higher office or appointments to the Cabinet & the SCOTUS. If President Obama nominates an openly Lesbian or Gay Liberal to the SCOTUS it will be a major step forward for the LGBT community and our nation collectively.

    •  Change happens.. (0+ / 0-)

      I don't think Kagan would be voted down by the Senate on the issue of gayness alone.

      There are, after all, 59 Democratic Senators and at least a handful of Republicans who say they opposed to discrimination against gays.

      •  That's true that change is happening albeit (0+ / 0-)

        slowly. Actually, I could see someone being rejected for a position on the basis of their sexual orientation alone. Those Senators you just brought up still have yet to enact ENDA even after all of the reassurance that ENDA would be voted on. First they said late March and now it's the middle of April. It's still perfectly legal to fire someone purely for being Gay in many states which is why ENDA is needed.

        •  Good news... (0+ / 0-)

          I have a son who will graduate from High School in a couple of months. Almost all of the students are strong proponents of gay rights, and the rights of gay students to speak openly about the issues are respected by almost all the straight students, and guarded by the school administrators.

          There is a tremendous generational change taking place before our eyes.

          •  Yep, I'm 23 years old and just graduated from (1+ / 0-)
            Recommended by:
            Cali Techie

            College. The Millennial generation will probably be the cohort that finally brings about full legal equality for LGBT people. At least, that is my hope for the legacy of my generation to finally solve these civil rights issues. Whether it be marriage equality or serving openly in the military I'm hoping we can finish what those currently in power will not.

            My vote for President Obama was my first vote in a Presidential election, and it has been a learning experience. From the passage of proposition 8 to the deference of LGBT people's civil rights from the Democratic party it has been a major wake-up call for me about how much work is left to do. I'm hoping I will know what it is to be treated as fully human by my government in my lifetime.

  •  Kick open closet doors (2+ / 0-)

    Well, none of this would be an issue if people like Kagan would get with the 21st century and stop trying to hide - or be coy with - such a central part of who they are.  Being gay will stop being such a big deal when everyone is aware that we're already in every facet of our society.

    •  Dammit, you are right. (eom) (2+ / 0-)
      Recommended by:
      Darmok, Liberalindependent28

      Learn more about second-class U.S. citizenship at

      by Larry Bailey on Sat Apr 17, 2010 at 11:17:35 AM PDT

      [ Parent ]

    •  This is an issue that is complicated. We are (1+ / 0-)
      Recommended by:

      are constantly silenced by laws like DOMA and DADT. You can't underestimate the powerful psychological impacts of being told you are inferior by your laws. Some LGBT people live in places that are so hostile that they have to remain closeted just to survive. Of course, these people aren't really living, but it is the intensely homophobic environment we deal with throughout this country. In fact, with everything we are put through, it makes the success of LGBT people in this country all the more meaningful. Especially those LGBT's who come from more humble socioeconomic backgrounds who deal with more challenges within the institutionalized homophobia designed to keep us down. There will need to be huge changes in American society and law so that the majority of LGBT people can live our lives safely, happily, and honestly. This country is far from that point, and it definitely informs our lives b/c of it.

    •  to echo Liberalindependent28.... (0+ / 0-)

      while I think ideally that anyone who is gay should feel comfortable with identifying themselves as such and should feel free to come out when they so choose, there's still the big problem of homophobia, social pressures, and cultural stigma, as well as discrimination at the workplace and in school simply for being gay.  I think the stigma will one day die down -- but that needs to be facilitated by laws passed by those in power to give the LGBT community equal civil rights as those enjoyed by heterosexuals.

  •  The saddest part of this, for me, is the WH inept (7+ / 0-)

    Handling of the incident. I expect no better of the RW, but this is yet another incident of poor press handling that leads me to suspect there's absolutely no LGBT persons being consulted on these issues, or not even anyone who is sensitive and educated on LGBT issues.

    New York magazine has a great articlethat well illustrates how it was botched. I agree with every word.

    "I am not guilty, I am not ashamed and I am not finished." --Lt. Dan Choi, 3/19/10

    by Scott Wooledge on Sat Apr 17, 2010 at 11:05:36 AM PDT

    •  I agree (3+ / 0-)
      Recommended by:
      craigkg, Clarknt67, SuperBowlXX

      It's also an inconsistent reaction (and that's not in defense of plagiarist Ben Domenech who shouldn't even be given a job writing restaurant menus - it's about general principle):

      Rumors and speculation about Kagan's sexuality are not new. As Gerstein notes, Fox News referred to Kagan as "gay," without further comment, in a story last year when she was nominated for the SG position. Just the other day, The Atlantic ran a piece about the "whisper campaign" regarding Kagan's sexual preference, and how both sides of the political spectrum could exploit it.

      (embedded links)

      Afaik, the WH did not issue heavy-handed criticisms to those media players. One has to wonder why it didn't.

      "I have lived with several Zen masters -- all of them cats." - Eckhart Tolle

      by catnip on Sat Apr 17, 2010 at 12:15:07 PM PDT

      [ Parent ]

      •  That's what strikes me, is it's inconsistent (3+ / 0-)
        Recommended by:
        catnip, craigkg, SuperBowlXX

        If anything, the WH tends to frustrate with it's silence. But, when it does comment, it's usually thoughtful and smart.

        But instead, they immediately attacked the story, not only quickly, but all wrong, and in a not very thoughtful way.

        "I am not guilty, I am not ashamed and I am not finished." --Lt. Dan Choi, 3/19/10

        by Scott Wooledge on Sat Apr 17, 2010 at 01:18:20 PM PDT

        [ Parent ]

    •  yes, I read that article (0+ / 0-)

      and linked to it in the diary above.

  •  Which Kagan? One of the neocon brothers, (0+ / 0-)

    Fredor Robert?  Oh, the nominee.

  •  Problem is, it matters to a lot of people. (2+ / 0-)

    Try mentioning gay anything most places on the Internet, and you'll not only get more responses than normal, but more negative responses than normal. Yes, it shouldn't matter, but huge numbers of people are still stuck in the 1950s and to them it does matter.

    Reality has a well-known liberal bias.

    by allergywoman on Sat Apr 17, 2010 at 11:09:46 AM PDT

  •  As to your Update 1... (1+ / 0-)
    Recommended by:
    Larry Bailey

    I'm sure she would not be the first gay Supreme Court justice.  I don't have any proof other than statistics but I'd be shocked if we haven't already had at least one gay President, VP, Secretary of State, etc.

    •  One possibility (1+ / 0-)
      Recommended by:

      For many years in Washington, D.C. prior to the presidency, James Buchanan lived with William Rufus King, who was earlier Vice President under Franklin Pierce in 1853. King was referred to by Andrew Jackson as "Miss Nancy" while Aaron Brown called him "Buchanan's better half." Buchanan actually wrote long, intimate letters to King.
      There were many rumors at the time that Buchanan was a homosexual. He is, after all, the only president to never marry in his life. But whether or not he was a homosexual continues to be a point of heated debate between historians.

      I'm a thinking person. I don't listen to Glenn or Rush.

      by tpabob on Sat Apr 17, 2010 at 11:18:59 AM PDT

      [ Parent ]

  •  adolescent my ass!!! (0+ / 0-)

    pass the diapers!  that is, if mr. vitter has any left......

    Never walk into a public restroom while breathing through your mouth.

    by quityurkidding on Sat Apr 17, 2010 at 11:20:25 AM PDT

  •  Why should I give a damn? (0+ / 0-)


    You cannot present a monster with a flower. Nora Astorga.

    by vivens fons on Sat Apr 17, 2010 at 11:25:25 AM PDT

  •  I was really disappointed at the White-house (3+ / 0-)

    Response. Instead of running around trying to bat the rumor down they should have said so what if she was gay? Who cares? But I guess we won't be seeing a gay supreme court justice any time soon.  

  •  Update #1 hits the bullseye. n/t (1+ / 0-)
    Recommended by:

    The nuclear arms race is like two sworn enemies standing waist deep in gasoline, one with three matches, the other with five. -Carl Sagan

    by CDH in Brooklyn on Sat Apr 17, 2010 at 11:29:39 AM PDT

  •  maybe Kagen asked for the denial (0+ / 0-)

    If she is gay she sure isn't upfront about it. If she is straight and wants to be looked at that way I would suggest she grow her hair and get a fashion advisor!
    I assume she is gay and she should just say so it has nothing to do with her qualifications for the court.

  •  The GOP needs to grow th e F*** up. (0+ / 0-)

    What are they a bunch of 14 year olds???

    When the power of love overcomes the love of power the world will know peace. -Jimi Hendrix -6.0 -5.33

    by Cali Techie on Sat Apr 17, 2010 at 11:33:35 AM PDT

  •  In light of the denial... (1+ / 0-)
    Recommended by:

    ...If Kagan gets the nomination, is confirmed and later comes out as being a lesbian, does Obama get credit for appointing the first openly gay Supreme Court nominee?

    As has been pointed out, it is believed that Frank Murphy, a Justice in the 1940's, may have been gay and rumors of homosexuality have been mentioned with respect to both Benjamin Cardozo and David Souter. Obviously no member of the Court has ever at any point in their life been out.

    I believe part of the distinction of being the "first gay X" is the part about being not just openly gay, but being openly gay for the entire process and facing the process of reaching the position being openly gay. For example, Obama is referred to as the first African-American President of the U.S. That may in fact not be the case. Several American Presidents may have had African ancestry, most recently Warren Harding and Calvin Coolidge. There is some evidence even Andrew jackson and Thomas Jefferson may have had such ancestry. None of this was widely known at the time of their elections. None of them were "openly black" even though some of them may have known about that ancestry. Such is not the case for Obama. We all knew he is of African descent throughout the entire electoral process and therefore he gets to claim the mantle of first African-American President.

    The same is applicable here for the Supreme Court nominee. We also could have an instance of this with a cabinet secretary whose sexual orientation has been the subject of discussion here and other places. If he or she comes out, should we consider them the first openly GLBT cabinet secretary even though there undoubtedly is a extremely high probability that we've had a gay cabinet secretary in the past? IF Frank Murphy was gay, he served as FDR's Attorney General before his appointment to the Court.

    Both Karlan and Sullivan have been mentioned in the past as potential nominees, especially last year, but recent reportings on "Obama's short list" have omitted both open lesbians. (see eg. Obama's Supreme Court Short List Includes Six Women)

    There is word this week that Obama has nominated an openly gay man to the U.S. Court of Appeals for the Federal Circuit, Edward DuMont, the first to ever be nominated at the appellate level.

    There are only two known gay Article III judges currently in service in the judiciary, one who was openly gay when nominated by President Clinton, Deborah Batts, and one who is still closeted but widely known to be gay, Vaughn Walker, the judge hearing the Federal marriage case in California brought by Ted Olson and David Boies. DuMont would still give only three gay judges (two openly gay) out of over 860, less then four-tenths of one percent of all federal judges, well below the percentage of openly GLBT people in the population much less the total GLBT population.

    The fact is we need to move beyond token GLBT appointments and the way to do that is not to ignore the sexual orientation of nominees (though their sexual orientation shouldn't matter as a matter of qualification), but rather to have a sufficient number of such people serving that it becomes a non-issue. The fact of the matter is that in the past many openly GLBT people have been passed over for nomination to federal office solely on the basis of their sexual orientation under the guise of "not Senate confirmable." As with the integration of African-Americans and other minorities into the political consciousness of the country, it takes getting many involved and being high profile about it.

    When Tom C. Clark retired from the Supreme Court in 1967 to avoid a conflict of interest over his son being appointed LBJ's attorney general, Johnson decided he wanted to put an African-American on the Court. One of LBJ's advisors suggested Leon Higginbotham of the 3rd Circuit as a good candidate. to which LBJ reported replied "The only two people who ever heard of Judge Higginbotham are you and his momma. When I appoint a n***** to the bench, I want to everyone to know he's a n*****." Johnson ended up appointing legendary former NAACP counsel, former 2nd Circuit judge and the U.S. solicitor general Thurgood Marshall, the most famous African-American lawyer in America, to the Supreme Court.

    If Kagan does get the nomination, she's not even a Judge Higginbotham yet, but Karlan and Sullivan would be a Thurgood Marshall (in more ways than just being the first notable minority of their category).

    "So it was OK to waterboard a guy over 80 times but God forbid the guy who could understand what that prick was saying has a boyfriend."--Jon Stewart

    by craigkg on Sat Apr 17, 2010 at 03:32:06 PM PDT

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