Does Elena Kagan eat meat? Is she a vegetarian, or a vegan? Does she observe Jewish dietary laws? Does she keep the Sabbath?
I’d like to know, and I’m sure other Americans would like to know the answer to these questions. Of course, there’s no way of knowing how many Americans without doing a poll to find out. Apparently, some Americans would also like to know whether or not Elena Kagan is a lesbian. After all, she’s 50 and isn’t married. Does she date anyone of the opposite sex? If she does, aren’t we entitled to know whether she sleeps with this person? Once again, we don’t know how many Americans are interested in these questions, but that ignorance does not prevent some (there it is again) in the media from claiming that hordes of Americans want to know.
That begs the question, if people want to know, are they entitled to an answer? Actually, no. Just because they want to know and think they have a right to know doesn’t mean that they should be satisfied. Well, the answer goes, that’s part of their value system, and regardless of whether or not I care about the question, they do.
If she’s a lesbian, maybe that predisposes her to favor gay marriage and gay adoptions. So she would be biased in that way. But wait. If she isn’t a lesbian and favors gay marriage and gay adoption and believes that gays and lesbians are entitled to equal protection under the law, then what? In other words, if she can arrive at the same position without being a lesbian, why would the same position be discredited if she were a lesbian?
We know that she’s not going to be asked questions about her sexual orientation during her confirmation hearings, and, even if she were, she wouldn’t answer them. Nor, in all likelihood will she answer questions with any specificity about abortion rights, healthcare, the commerce clause of the Constitution or reading defendants their Miranda rights. The custom now is for Supreme Court nominees to reveal as little as possible about their beliefs and constitutional philosophy in their confirmation hearings. They may even obfuscate and dissemble. See, for example, the confirmation hearings for Chief Justice John Roberts and Justice Samuel Alito.
So apparently some members of the media have come forward to guard the public interest by raising questions about nominees and speculating, whether or not the questions or the speculation have any relevance to the qualifications of the nominee.
The Supreme Court now has six Roman Catholics sitting on it. Once upon a time in America, that would have brought mobs out into the streets. Now, hardly anyone notices. A justice’s religious beliefs may or may not influence his or her thinking in coming to a decision, but the entire panoply of our experiences influences our thinking and decisions. Why focus on one aspect of a person’s character or experience and elevate that to paramount importance?
And even if, and it’s a big if, some group, because of its value system, demands to know one thing or another of questionable relevance about a nominee, the media are not obligated to raise the question. We’re here to exercise judgment and—excuse me for exhibiting a little elitism here—tell people what we think they need to know, which isn’t the same thing as what they may want to know. People seem to want to know a great many things about public officials that are of questionable value to the well being and future of the Republic.
Let’s not confuse the desire to know with the need to know.