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 CBSNews.com 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:
- 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.
- 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:
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.