My initial reaction to those who wish to know Kagan's sexual orientation was one of disgust. In judging, one is to be guided by the facts and the law and nothing more. Therefore, sexual orientation is simply not job-relevant. Those who believe that it is question the very foundation of our legal system, i.e., the idea that judges can be impartial. I have no doubt that some social conservatives believe that so-called activist judges are not guided by precedent but rather by their preferences, that their rulings are designed to achieve predetermined results.
And I personally couldn't care less whether she is gay or not.
But I came to realize that I simply had not thought this matter through, because my initial reaction is actually inconsistent with my views about Associate Justice Sonia Sotomayor.
I wrote last year that Sotomayor's sex and ethnicity are job-relevant. I endorsed a view articulated by Dahlia Lithwick of Slate. Lithwick writes,
[I]t strikes me as intuitively obvious that in order to succeed in a white man's world, women must learn to see both sides in ways that men do not. If that is true, it just might make them "better" judges, at least in some circumstances.Why would women be better than men at seeing both sides? Researchers have studied a phenomenon known as imaginative identification:
[I]n order to get ahead in the world, you learn to see life through the eyes of those who have already succeeded. According to at least some anthropologists, women have had to get awfully good at understanding what it would be like to be a man.Then what makes Sotomayor's ethnicity relevant? I like to present the following thought experiment to the people I know: all else being equal, who is more likely to have a better understanding of the lives and experiences of African-Americans, Barack Obama or George W. Bush? Common sense tells us that the correct answer is Obama. Obama has an insight into the African-American experience that George W. Bush very likely does not have, simply because Obama has lived the life of an African-American man. Now, I don't claim that a white person could not gain such insight; I just claim that such insight is much harder to come by for whites.
But does it follow that judges cannot be impartial, that they are guided by their preferences rather than the facts and the law?
I believe that some conservatives assume that people who are other are incapable of ruling impartially. People worry about Kagan's sexual orientation because they believe that if she is gay, she will rule in favor of gay marriage simply because she is gay. And there was this gem in the pages of The New Yorker about Sotomayor's Senate confirmation hearings (emphasis mine):
There was something distasteful about Sotomayor’s being lectured on civil rights by the likes of Senator Jeff Sessions, of Alabama, whose own retrograde views on race back in 1986 led to his being rejected for a federal judgeship by the very committee on which he now serves. (One of the more cringe-worthy moments of the hearing was Sessions’s expression of incredulity that Sotomayor might disagree with another judge on her court even though he was also Puerto Rican.)And, speaking more broadly, we have the reprehensible Glenn Beck claiming that Barack Obama hates white people. (And why wouldn't Obama hate white people? Just look at the man!) The hateful prejudice behind both these comments and the aforementioned assumption is thinly veiled. Those who accept the assumption also assume that those who are white possess an inherent ability to be impartial. This belief in an inherent difference between white men and all others is as reprehensibly mistaken as can be. If one denies that others lack this ability by virtue of their ethnicity or sex or what have you, then there is obviously every reason to think that whites are similarly impaired.
No, the fact is that one's life experience can actually enhance one's ability to be impartial, due to the phenomenon of imaginative identification. Judges from all walks of life can be guided by the law and the facts in their rulings; one's life experiences give one a greater appreciation of and sensitivity to certain facts, which can certainly make one a better judge. Still, those who are members of marginalized groups have an edge on those who are not because of the very idea of the rule of law: everyone, we are told, is equal before the law, but those who are less likely to be treated as equal before the law are more likely to be members of marginalized groups, and judges from marginalized groups are, all else being equal, more likely to ensure that members of marginalized groups will be treated fairly.
So I find myself in agreement with Andrew Sullivan. According to Sullivan, the question whether Kagan is gay
is no more of an empirical question than whether she is Jewish. We know she is Jewish, and it is a fact simply and rightly put in the public square. If she were to hide her Jewishness, it would seem rightly odd, bizarre, anachronistic, even arguably self-critical or self-loathing. And yet we have been told by many that she is gay ... and no one will ask directly if this is true and no one in the administration will tell us definitively.Sullivan is right.
In a word, this is preposterous - a function of liberal cowardice and conservative discomfort. It should mean nothing either way. Since the issue of this tiny minority - and the right of the huge majority to determine its rights and equality - is a live issue for the court in the next generation, and since it would be bizarre to argue that a Justice's sexual orientation will not in some way affect his or her judgment of the issue, it is only logical that this question should be clarified. It's especially true with respect to Obama. He has, after all, told us that one of his criteria for a Supreme Court Justice is knowing what it feels like to be on the wrong side of legal discrimination.
If conservative senators want to block Kagan's confirmation simply because she may be gay, let them. Allow their hateful prejudice to show itself, let them try to further marginalize their fellow Americans who might benefit from having Kagan on the Court, let them try to deny Obama his right to nominate someone who is by all accounts perfectly qualified for the Supreme Court, and I predict that they will suffer yet another Waterloo.