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The Kagan Rorschach test | Hunter of Justice

The Kagan Rorschach test

by on May 11, 2010  •  In Culture, Supreme Court

Hardworking as well as smart, grade grubbing, self-absorbed careerist with sense of humor and liberal politics (possibly reflecting ethnic heritage or parental values) for whom pragmatism is the ultimate value ISO job commensurate with skills and potential for ego growth…

I have to admit that the blizzard of commentary around Elena Kagan's nomination makes me realize how jaded I have become, doubtless from spending way too much time around fellow academics and politicos. Elena Kagan – the perfect academic/politico hybrid (smarter than your average politico, more pragmatic than your average academic, and with the uber careerism found in both groups) – seems to me more archetypical than exceptional. Gotta hand it to David Brooks and Andrew Sullivan, who nailed it with their comments on the culture of career.

Because Elena is so smart and hardworking, I think she will carry a quality of excellence – as in intellectual excellence – to the Court. Will she evolve into a political leader, drawing on that endless ambition to cast herself as the new Brennan, crafting deft compromises to achieve maximum possible progressive results?  I hope so, but I have no idea.  Or could she become the next Frankfurter, the super-smart "elite's elite" Justice who leaves the Court as a sad example of disappointment rather than of greatness?  Maybe.  The truth is, none of us can possibly know.

And, oh yes, she might be lesbian.  Even Andrew Sullivan, who initially called for her to come out, finally got the connection: "In a way, talking about the closet of sexual orientation is beside the point. Her entire life seems to have been a closet – in the pursuit of a career." Everyone – including the eight other Justices, POTUS, etc etc – has a closet with something in it.  Why is sexuality assumed to be the most important, most revealing, most authentic indicator of who a person really is?

Declining to adopt a public sexual identity is not the same as hypocrisy and moral arrogance. When a person with power over others campaigns against "sexual immorality" and is revealed as him/herself someone who engages in those same acts, there is a revelation – of dishonesty, cowardice and exploitation.  That is significant, as well as pathetic.

When a person is not trying to alchemize his/her own shame into power by hurting people who are reminders of that shame, who benefits when we coerce a public statement regarding sexuality? If the person is comfortably heterosexual, as Elena may be, they say so and their life goes happily forward.  If not, the immediate product is an enormous bulls-eye on the forehead. Yes, we all get to have a public debate over whether a gay person can be a good Supreme Court Justice, but at what cost? And what about people who genuinely struggle with their own sexuality? What about people whose honest answer would be bisexual, who doubtless would be the big losers in terms of public support? Is there a legitimate reason to force them to self declare?

As in so many other respects, there is a close analogy to religion.  Those who would honestly self-identify as atheist are even more pariahs in American politics than gay people. Who benefits if that information is revealed?  And what about people who genuinely struggle with how to describe themselves in religious or spiritual terms, whose honest answer would be something like "intellectually Buddhist culturally Jewish theologically amused" or "no longer Christian but not yet resigned to death"?

The issue is tricky, though, which is part of why I think that Elena's nomination triggers so much talk. At the same time that forced outings seem to me silly and in their own way self-absorbed, I also don't subscribe to some traditional notion of the propriety of a public-private chasm. The private life experiences of those who shape culture and exercise state power are surely important and relevant to a full understanding of their work and their times. The era of FDR was, importantly, in part a time when the First Lady had an intimate relationship with another woman who also lived in the White House and the President returned emotionally to the woman he had fallen in love with decades earlier, then left behind when his mother threatened to cut him off if he and his wife divorced. The boomer generation is reflected in part in the kind of complex marriage that we see between Bill and Hillary Clinton.

So, yes to the intersection of the public and private in terms of importance. In the moment, though, can't we grant those who struggle with the repressive side of our sexual culture, without sinking into repression themselves, some peace?

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