It’s like a class reunion. My law school classmate Elliot Spitzer swears he didn’t date Elena Kagan. Now my classmate Ruth Marcus swears Kagan is not gay (and neither is Ruth, she makes sure to note).

The main point of Ruth’s column is that it’s tough out there for middle-aged women who never have been married, and it often has to do with men being afraid of women who are smarter than they are. I’ll concede the former point, but not the latter.

But Ruth also makes this interesting observation (emphasis mine):

From my (straight, married mother) point of view, a gay justice would be a benefit to the court and the country. To the country because it would speed up the inevitable: acceptance of gay Americans in all walks of life. To the court because — as with any additional perspective — an openly gay justice would add to the richness of the court’s understanding of cases, particularly gay rights cases, that come before it.

So does that mean being gay IS relevant to judicial decision-making on important constitutional issues such as gay marriage, and therefore, the public is entitled to know? And if so, why should it make a difference whether the person is “open” or not?

That seems to be Andrew Sullivan’s point, for which he has been excoriated.

Such is the problem when one plays identity politics. It is hard to argue that the identity is relevant to judicial decision-making, yet argue the public is not entitled to know the identity.

And for the record, neither Sullivan nor Kagan was my law school classmate, not that there would have been anything wrong with it.

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Related Posts:
Kagan Said She Meant What She Said About Gay Marriage
Clinical Law Profs Don’t Even Count As 3/5ths Of A Person

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