Kagan and the 'Gay Question' Controversy

WASHINGTON, May 13, 2010— -- When Elena Kagan goes before the Senate Judiciary Committee this summer, she'll be asked dozens of questions by probing senators eager to understand the influence her education, career path, family life and personal views would have on her judicial philosophy.

What she almost certainly won't be asked, based on decades of precedent and confirmation hearings, are questions about her sexuality. But that hasn't stopped a mixed cast of gay and conservative bloggers from doing it instead, sparking a boisterous debate about a nominee's personal life never seen before.

No evidence has proven that Kagan herself is gay, which both her college friends and administration supporters have flatly denied. Before the nomination, White House consultant Anita Dunn said assertions by a conservative blogger for CBS News that Kagan is gay amounted to "people posting lies," while White House spokesman Ben LaBolt called them "false charges."

Moreover, it's clear from a recent ABCNews/Washington Post poll that most Americans -– 71 percent -- would find a nominee's sexual orientation irrelevant in determining his or her suitability for the Supreme Court.

Senior White House adviser David Axelrod told reporters earlier this week that he and President Obama agree. A nominee's sexuality "has no place in this process," he said. "It wasn't … an avenue of inquiry on our part and it shouldn't be on anybody else's' part."

Still, in the hours after Obama named his second high-court nominee, thousands of Internet users took to Google searching for reports or evidence that Kagan is gay, and others joined the speculation on chat rooms and message boards.

The Atlantic's Andrew Sullivan, an openly gay and conservative blogger, was among the first to prominently pose the question about Kagan after her nomination. "So, is she gay?" he wrote in a headline just minutes after Obama announced his pick Monday.

"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 said. "In a free society in the 21st century, it is not illegitimate to ask."

Sullivan, who does not substantiate who the "many" are, insisted that he's not trying to slander or "expose" Kagan, but said his question is a fair one that ought to be a matter of record.