Re: Code Words

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While he talks generally of knowing her well, when he says her views are a mystery he ties it only to her public record, neither saying that she's enigmatic about her views in person nor that he knows non-public things about those views. What looks like information about her dissolves into nothing at all when you poke at it a bit.

It seems to me that you can blame the conventions of journalism, rather than any deviousness on the part of Toobin, for this. He's obviously not going to write about private, off-the-record conversations he had with her as if they represented her public views. But he just as obviously has to disclose that he knows her quite well. So he's in the position of saying "yes, I know her well, but I can't really tell you anything about her, because there's nothing in-bounds that I can refer to ethically."

Either that or she actually dislikes him, and he's simply unaware of that.


Posted by: Sifu Tweety | Link to this comment | 05-11-10 6:38 AM
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And as far as the generic value of non-denial denials and carefully worded evasions, the issue is not whether the media gives you credit, it's when the truth comes out. It's about controlling timing more than anything else.


Posted by: Sifu Tweety | Link to this comment | 05-11-10 6:39 AM
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I think you're overlooking Kurtz's role in this, and attributing too much initiative to the White House.

Here's Kurtz again

Did Kurtz ask Dunn and LaBolt whether Kagan was gay? He must have, and they must have refused to answer for attribution. Does Kurtz report that fact? He does not.

Instead, he finds someone willing to say what he needs to have said on a not-for-attribution basis.

Kurtz's role here is not to discern reality, but to come up with a version of reality that's mutually agreeable - which he does. Note how Domenech, Dunn and LaBolt don't contradict each other here - but that none of them endorse the view of the unnamed White House person.

Nonetheless, Kurtz gives that person the most prominent role in the story.

That's not Dunn's doing, or LaBolt's. That's Kurtz.


Posted by: politicalfootball | Link to this comment | 05-11-10 6:40 AM
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She has written relatively little, and nothing of great consequence.

Toobin: friend? enemy? or frenemy?


Posted by: Mary Catherine | Link to this comment | 05-11-10 7:10 AM
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I really hate this sort of non-communication communication

Well yeah but it can be useful -- it's pretty much the essence of the diplomatic communique that uses agreeable words to paper over the absence of any real agreement.

Though it's lousy that this now extends to journamalismists like Kurtz.


Posted by: Middle Aged Man | Link to this comment | 05-11-10 7:12 AM
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SHE'S NOT A GAY. NOT THAT THERE'S ANYTHING WRONG WITH THAT.


Posted by: OPINIONATED WHITE HOUSE | Link to this comment | 05-11-10 7:17 AM
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I really hate this sort of non-communication communication

And yet you are a lawyer.

You know, previously, you said you didn't understand why anyone lied in public, and when pressed on how a lawyer could be confused by such a thing, replied that as a lawyer, you knew many ways of avoiding truth telling without actually lying. Given so many other good options, why lie outright?

Now you come out against evasion. Are you sure you are in the right business?


Posted by: rob helpy-chalk | Link to this comment | 05-11-10 7:20 AM
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Doesn't the White House have to sort of be surprised by the fact that she's gay, when that comes out, so that they aren't 'pushing the homosexual agenda' kind of thing?

"we just talked about legal philosophy, not personal life, during the job interview"

not quite that explicit, but making the press think its the GOP that started it, since the right wing dobson crew will be saying 'nominating a lesbian is offensive to good churchfolk' type thing


Posted by: yoyo | Link to this comment | 05-11-10 7:26 AM
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Huh. I guess it could be read literally as you say, a non-denial-denial, but usually those have a little more non-denial in them. This one's pretty close to a flat denial--close enough that I agree with you that they'll get no benefit from it if it later comes out that she's a lesbian. The natural reaction would be that the white house lied, or intentionally deceived, which for these purposes is the same thing. It's possible it was a very poorly executed non-denial-denial. But, as I said in the other thread, it was strong enough that it's actually made me retreat back to "maybe she's straight after all".


Posted by: Brock Ladners | Link to this comment | 05-11-10 7:30 AM
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The Gay Agenda

Item I. Gay Call to Order

Item II. Approval of Last Meetings Gay Minutes

Item III. Gay Announcements.

Item IV. Old Gay Business

Item V. New Gay Business

Item VI. Gay Adjournment.


Posted by: rob helpy-chalk | Link to this comment | 05-11-10 7:32 AM
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What does it say about the state of government and the media that of all of the sources in Kurtz's story, including Kurtz himself, the most credible is Domenech.


Posted by: politicalfootball | Link to this comment | 05-11-10 7:33 AM
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|>

I am a bit surprised by the LGM criticism of the Kagan nomination.

Paul Campos is a law professor, isn't he?

(3) The argument in (2) makes sense only to the extent that it's plausible to argue that legal interpretation, when it takes place at the level of the SCOTUS, isn't a thoroughly political, as opposed to a formally technical, activity. That is deeply implausible, but the social and intellectual conditions of the American law school obscure this.

Glad to see my understanding of law is supported by some scholars. Stanley Fish would support me in email, had I access to email, and were SF to be a lurker.

|>


Posted by: bob mcmanus | Link to this comment | 05-11-10 7:41 AM
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but usually those have a little more non-denial in them.

Right - by all evidence, this was just a lie told on a not-for-attribution basis because Kurtz couldn't get anybody to lie on the record.

I think that makes it pretty easy to back off from. With the exception of one person, every member of the Administration can accurately claim to have never made any assertions whatsoever about Kagan's sexual orientation.

And even that one person can still lie and claim to have never discussed the matter with Kurtz. Were Kurtz to accurately contradict such a liar, he would be seen as breaching journalistic ethics.


Posted by: politicalfootball | Link to this comment | 05-11-10 7:47 AM
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Oh, i was picturing more like a Gay Agenda dayplanner. Using gay eye branding too.


Posted by: yoyo | Link to this comment | 05-11-10 7:47 AM
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Why would Kurtz be so interested in spinning his article for the WH? The amount of careful papering-over suggested in politicalfootball's account seems as though it would go well beyond a journalist's wanting to protect access and into deliberate cooperation.


Posted by: Jackmormon | Link to this comment | 05-11-10 7:48 AM
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11: Nothing good. Other bad signs: the WaPo article in this morning's paper was palpably disappointed at the relative lack of controversy. She's apparently competent, Teh Evil Left isn't happy with her but isn't in open revolt, there are enough Democrats in the Senate that Obama's nominee is almost assured of approval... the article's writer and/or editor was very obviously wishing for some kind of controversy hook (read: a chance, however scurrilous, for some kind of sensationalism at what would be most routine functions of national government if this were a sane country).


Posted by: Cyrus | Link to this comment | 05-11-10 7:52 AM
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9: I agree. To call the statement "She's an open lesbian" "false charges," well, you really have to do a lot of hopping on one foot to say that was only about the "open" bit -- because where is the "charge"? And the same with Dunn's "outdated stereotypes" comment -- if these are "non-denial denials," then they are so disingenuous as to be taken by everyone (afterwards, if there is an afterwards) as flat lies. Especially since the whole brouhaha got paraphrased into a thousand other newspaper articles as, "The White House, via LaBolt and Dunn, insist Kagan is straight."


Posted by: oudemia | Link to this comment | 05-11-10 8:06 AM
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15, 17: Why would Kurtz be so interested in spinning his article for the WH?

This is where I (and all of us) do not understand the rules. There a number of lightly-closeted gays in politics and media who get the consensus gentleman's agreement. What is being tested now, is whether this treatment will hold with Kagan. Kurtz was partly playing under the Village "rules" and simultaneously testing the waters--Domenech went outside of the game.


Posted by: JP Stormcrow | Link to this comment | 05-11-10 8:18 AM
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When Kagan is sworn in, she's going to announce who she sleeps with and what she believes, and y'all are going to be SO SURPRISED.


Posted by: rob helpy-chalk | Link to this comment | 05-11-10 8:21 AM
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I said all this in the other thread, but, if you read the sentence immediately preceding the bit you quote: "Judgment, values, and politics are what matters on the Court. And here I am somewhat at a loss." He's saying that she is a very good friend about whose "judgment, values, and politics" he knows little. Now, I don't have any friends like that. You're right that when he tries to explore what what can be known, he goes right for her service in the Clinton administration, rather than "that time? at the bar?" But he is saying he doesn't know. Otherwise, I agree with you. He's probably lying -- and if you read the comments on the piece, more than one person says, "Why even bother writing this? We know you can't say anything, just don't lie and tell us you don't know anything."

And again, I already posted this, but the Dahlia Lithwick piece in Slate is worth reading as well.


Posted by: oudemia | Link to this comment | 05-11-10 8:24 AM
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19: Rob do you and/or Molly have something to say?


Posted by: oudemia | Link to this comment | 05-11-10 8:25 AM
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To 12, there are quite a lot of law professors who would agree with the first sentence of that statement, taken in isolation. I might agree with it myself depending on the meaning you give the words "opposed to" (i.e., I wouldn't say that the Court's decisionmaking is thoroughly political to the exclusion of formal technique; but I also certainly wouldn't say that it's formally technical to the exclusion of politics).

Given that widespread agreement, the second sentence is a bit of a mystery to me. Perhaps what Campos is getting at in the present context is that a fair number of law professors who would agree with the first sentence in private (or, at times other than Supreme Court nominations, in public) will cheerfully reject it in public (or, at least, decline to make any comments expressing it) for the next couple of months. Which, yeah, that's true.

To the OP, I think Toobin's statement is reasonably well crafted, and people are going to have to say things like Toobin did in supporting the nomination. I mean, he's not going to come out and say: "She's a Clinton Democrat, a bit of a technocrat (maybe more than a bit), liberal at heart on balance but no aversion to compromise, and here are some examples demonstrating that." Which is presumably what he would say if he was going to say something.

The White House stuff, well, it mystifies me a bit that they didn't feel they could ignore Domenech.


Posted by: widget | Link to this comment | 05-11-10 8:25 AM
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When Kagan is sworn in, she's going to announce who she sleeps with and what she believes, and y'all are going to be SO SURPRISED.

Great, just what we need, another goddam bugfucker on the Court.


Posted by: MAE | Link to this comment | 05-11-10 8:30 AM
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You are ignoring the fact that Toobin is a complete and utter ass.

Toobin's suggestion that she is some blank slate is ridiculous. So is the Lithwick piece, to a lesser extent. We know what her rough political views and takes on things are, from her actions; indeed, since she was a political staffer for a while, her politics are more clear than, say, Judge Sotomayor or most appellate judges. She's a centrist Clintonite liberal who is broadly supportive of executive power with some judicial checks. What's the big fucking mystery?

No, this does not mean there is a public record indicating how she will rule on every issue.


Posted by: Robert Halford | Link to this comment | 05-11-10 8:30 AM
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You are ignoring the fact that Toobin is a complete and utter ass.

Actually, having read a lurid, gossipy piece about him, he is forever in my head as "Fisting enthusiast, Jeffrey Toobin."


Posted by: oudemia | Link to this comment | 05-11-10 8:32 AM
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20:"Why even bother writing this?"

It's Jeffrey Toobin, he has to write something. Silence would be subject to its own very strong interpretation.


Posted by: bob mcmanus | Link to this comment | 05-11-10 8:35 AM
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24 is right -- she's had political jobs. You don't get those without telling people what your politics are.

And to 20: Yeah, you're right, that sentence is, I assume, just a lie unless you get really tricky about what "at a loss" means. ("At a loss" for something I can safely say, rather than "at a loss" in terms of my own lack of knowledge?) Back to the OP, that's another thing that burns me about this sort of evasiveness -- no one seems to be very good at it, and people often slip into actually saying the false thing they meant to only imply.


Posted by: LizardBreath | Link to this comment | 05-11-10 8:38 AM
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The amount of careful papering-over suggested in politicalfootball's account seems as though it would go well beyond a journalist's wanting to protect access and into deliberate cooperation.

I don't think so. Why not tell people that Dunn and LaBolt refused to talk for the record about Kagan's sexual orientation? Because to do so would piss off Dunn and LaBolt - and other folks at the White House.

But if Kurtz needs additional motivation, then he's got that, too. Who wants to be someone who outs a semi-closeted non-hypocrite who is seeking high office? I can see how a guy like Kurtz might think, "Well, I could lead my story with the fact that nobody in the White House would go on the record on this, but that would piss off my sources, validate that prick Domenech, and harm a person who deserves a little privacy." This is probably a story that Kurtz wants someone else to break.


Posted by: politicalfootball | Link to this comment | 05-11-10 8:40 AM
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Heh, lightly closeted. Walk-in closeted? I was interested in the discussion yesterday of the closety spectrum, where "people close to me know" is verily not what we mean by out, but it isn't the same as being truly, madly, deeply in the closet. The funny thing is that one place I've seen this thoroughly unpacked was on a personal ad site, can't remember which, that had a drop-down menu for "outness level" or some such. Out at work, out to friends, etc. This level of nuance mattered in that context but isn't something one may have had reason to flesh out in thinking about politics.

The other thing that interested me in that discussion was the thing about being in the closet being understandable if regrettable. Which, yes, but I always find myself making possibly unfair mental juxtapositions and asking an imaginary Ricky Martin, sitting on a couch next to an imaginary Elena Kagan, to think about some kid who may get thrown into the street or worse for coming out and tell me again why it was important to stay in the closet.

These are not good examples, taken together. For a celebrity, it's very difficult to feel much sympathy. They've forsaken the possibility of giving a lot of people the banal but important prospect of saying "X is gay and X is beloved by all, so gayness is not so awful," and probably they've forsaken it in favor of making a lot of money because they only have a metric fuckton already.

The stakes are utterly different for Kagan because what's going to happen if People magazine gets a hold of it is not that a bunch of teenage girls are going to tear down their Elena Kagan posters. Supposing any of this is even true, and supposing her sexuality dictates her politics in some predictable way, she stands a fragile chance of doing something really important. To be in the closet here may be a great sacrifice toward a worthy end, though one that may or may not pay off...


Posted by: Mister Smearcase | Link to this comment | 05-11-10 8:41 AM
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I think, Mr. S, that it's awfully easy to discuss the sacrifices that other folks ought to make for the greater good.


Posted by: politicalfootball | Link to this comment | 05-11-10 8:47 AM
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30: Aren't you reading 29 backwards? Smearcase is saying that while he generally disapproves of being closeted, Kagan may be justified in staying in: staying in, which she's doing of her own accord, is the sacrifice. Or are you disagreeing with the general disapproval of closets?


Posted by: LizardBreath | Link to this comment | 05-11-10 8:50 AM
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27: In the context of that piece, I don't think "at a loss for objective evidence I can present to you, my readers, that will convince you she has good judgment, the right values, and congenial politics, although based on my personal relationship with her I think she does have those qualities" is an indefensible reading.

I'm not prepared to mount a broader defense of Toobin.


Posted by: widget | Link to this comment | 05-11-10 8:51 AM
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30 Yes, but (whether this makes me sound less like a sanctimonious prick or not) it's just that I think it is simply that important to come out if at all possible. And when you're talking about people with a lot of advantages, it seems very possible indeed.

It's probably dumb to play the "I came out in 1989 in medium-sized-town Kentucky" card because I had a lot of advantages, too, and anyway you just can't always know what someone else's obstacles were. But at the same time it is 2010, and things are vastly better/easier, and my early 90's consciousness has hung onto the idea that if you're in the closet, you are kind of part of the problem.


Posted by: Mister Smearcase | Link to this comment | 05-11-10 8:57 AM
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31: Ah - I might be reading 29 backwards. Never mind.

Anyway, I don't at all hold it against Kagan or Martin that they should remain semi-closeted. Lots of people who aren't me could be making lots of sacrifices for the greater good. I don't see that Ricky Martin or Ms. Kagan have any particular obligation in this regard beyond what they've actually done.


Posted by: politicalfootball | Link to this comment | 05-11-10 9:02 AM
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my early 90's consciousness has hung onto the idea that if you're in the closet, you are kind of part of the problem.

As a privileged white male in the United States of America, I'm part of so many problems that I can't begrudge Martin his involvement in that particular problem, especially given the size of the sacrifice involved for him. There are a lot of people with a greater responsibility to that poor gay kid in Dubuque than Martin.

And Martin, I thought, pulled off the "not that there's anything wrong with that" with particular grace. He expressed gratitude to his gay fans, but said that he didn't happen to be gay. Seems like enough to me, especially in a world that includes Larry Craig.


Posted by: politicalfootball | Link to this comment | 05-11-10 9:06 AM
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I urge you all to google "fisting Toobin," which is what I did on reading 25. Not only is it enlightening and entertaining, it also will make me feel like less of a freak for doing it. Googling, not fisting. NTTAWT.


Posted by: togolosh | Link to this comment | 05-11-10 9:10 AM
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I predict Kagan's orientation doesn't come up at the confirmation hearings. I think outness in Washington has got to be like the guns-drawn-all-around scenes in Hong Kong action movies. Everyone has the goods on who's gay, so if someone outs someone else, then the other side has the means to retaliate. People only ever seem to get outed in the context of a lurid sex scandal.

Gay politicians seem to be in the habit of keeping each other's secrets. I was at a Drinking Liberally in Seattle, when one of the local politicians dropped by. This was not too long after a prominent conservative state legislature got outed in a lurid sex scandal. At some point it became clear that the local politician was gay. We asked him if he'd known this other guy was gay, and he said that everybody in Olympia knew. But none of his voters did.

The local pol himself fits something Bave said yesterday about it being work to be actively out. He himself made no effort to hide the fact that he was gay, and he represented one of the most liberal areas in the entire country, so none of his voters would care, but he had represented me for years and I had no idea. What would he have to do to be more out? Hold weekly press conferences to remind everyone? Whenever new male voters moved into the area, ask them out on dates?


Posted by: Walt Someguy | Link to this comment | 05-11-10 9:18 AM
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38: I Googled to make you feel better. But I refused to look at the results. I'm too dignified.


Posted by: Walt Someguy | Link to this comment | 05-11-10 9:20 AM
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37: While Jim McGreevey was giving his "I am a gay American" speech, I was on the phone with my (70yo) mother and expressed surprise. My mother answered, "Are you kidding? Everyone knows."


Posted by: oudemia | Link to this comment | 05-11-10 9:29 AM
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34: Well, sure, no. Nobody has any particular obligation to do anything good at a risk to his own security or wealth, but it's not unreasonable to be disappointed when they don't. As uninteresting as his music/career/life are to me, someone like Ricky Martin could have done some good. (I'm told he's not such a faded star in PR as he is here, and his coming out has an importance there that it doesn't have here, where it looks like a last clutch at fame.)


Posted by: Mister Smearcase | Link to this comment | 05-11-10 9:29 AM
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Regardless of his sexual orientation, I can't say I have any grasp of what sort of justice Ricky Martin would
make. I mean, sure, he was a consensus builder in Menudo, but the SC is livin' la vida loco parentis.


Posted by: Sifu Tweety | Link to this comment | 05-11-10 9:33 AM
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40: The Advocate or Out or someone or other had a cover story on "The Glass Closet" and the cover image was a photograph of a man holding an Anderson Cooper mask over his face and a woman holding a Jodie Foster mask over hers. Their argument ran something like yours, there are any number of people whose coming out would not hurt them -- since many are semi-out already, but could potentially help others.


Posted by: oudemia | Link to this comment | 05-11-10 9:33 AM
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42: I hadn't realized Foster and Cooper weren't all the way out yet. At some point, even for a celebrity, doesn't it become pointless?


Posted by: LizardBreath | Link to this comment | 05-11-10 9:35 AM
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re: 43

Foster has taken her partner to events. So it's not like she's even semi-closeted, but, afaik, she just hasn't chosen to make any kind of explicit statement.


Posted by: nattarGcM ttaM | Link to this comment | 05-11-10 9:37 AM
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9: The natural reaction would be that the white house lied, or intentionally deceived, which for these purposes is the same thing.

Fixed that for you.


Posted by: | Link to this comment | 05-11-10 9:38 AM
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43: I think the closest Jodie Foster came to being publicly out was thanking "my beloved Syndi" at an awards ceremony. And that was considered a huge deal. I remember in the 80s there were xeroxed pix of her face up on utility poles in the East Village that said "DYKE" or something, because folks really wanted her to come out.


Posted by: oudemia | Link to this comment | 05-11-10 9:39 AM
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Perhaps the people who might be favorably influenced in their attitudes by a celebrity coming out are precisely those people who would hesitate to believe that the celebrity was gay without a public announcement.


Posted by: widget | Link to this comment | 05-11-10 9:39 AM
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43/44: Heh heh, that John Hinkley, Jr. dude was *really* barking up the wrong tree, wasn't he?


Posted by: KR | Link to this comment | 05-11-10 9:41 AM
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Jodie Foster is totally out.


Posted by: Robert Halford | Link to this comment | 05-11-10 9:42 AM
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46: Weren't there a series of those for different celebrities? I remember them as parodies of Absolut ads, but I might be conflating two things.

47: There are a lot of stories about sheltered middleaged women who refused to believe that that nice Liberace was a homosexual.


Posted by: LizardBreath | Link to this comment | 05-11-10 9:43 AM
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WAIT, IRIS IS GAY? I'M GONNA FUCKING KILL SOMEONE!!!


Posted by: OPINIONATED TRAVIS BICKLE | Link to this comment | 05-11-10 9:44 AM
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Here's a sort of story about the story, and it says she doesn't bring her partner to events, and that in general the press has declined to call her a lesbian, since she wasn't really "out." But then that started to change.


Posted by: oudemia | Link to this comment | 05-11-10 9:44 AM
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49 -- Oh wait, I just checked and I guess there's never been a public statement. Bizarre. I mean, she doesn't hide at all the fact that she's gay. I know people who know her lover well, she goes out in public, etc., etc.


Posted by: RObert Halford | Link to this comment | 05-11-10 9:45 AM
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who refused to believe that that nice Liberace was a homosexual.

There was a funny bit in the movie where Austin Powers expresses his shock. "Never saw that one coming."


Posted by: politicalfootball | Link to this comment | 05-11-10 9:46 AM
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53: Right. Exactly. Hence the closet, she is of glass. Oh, and the partner -- but maybe not anymore? -- is Cydney not Syndi (as I wrongly said above).


Posted by: oudemia | Link to this comment | 05-11-10 9:47 AM
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42: Semi- can be pretty semi-, though. When it came out that Greg Louganis had AIDS, there was public surprise at the revelation he was gay, when I would have thought that it was public knowledge for at least ten years before that.

Apparently, Brian Boitano is not answering questions about sexual orientation in relation to his new cooking show. I mean, really, Brian Boitano?


Posted by: Walt Someguy | Link to this comment | 05-11-10 9:48 AM
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55: Although, it's weird, the only thing that makes her not all-the-way out is the convention I alluded to on the other thread, where it's malicious gossip to spread the fact that someone's gay unless you're certain they wouldn't mind, even if they're not hiding their orientation from you, or lots of other people, at all. Without that convention (which I haven't described well, but you know what I mean), what she's done in terms of being out -- appearing publicly with her partner -- would be all that's necessary to completely settle the issue.

(Now, even without that convention, Bave's right of course that being all-the-way out is going to be effortful -- not for Jodie Foster, because in her case the media can spread any necessary information to everyone who might possibly be interested. But for ordinary people, if you want acquaintances to know you're gay before they get confused, you have to actively make it clear. And Bave particularly is very graceful at it - the first time I met him, I attempted to entice to him to some social event by mentioning that there would be cute single women there, and he clarified without making me feel like an idiot at all. Which is a neat trick, because I've got a hairtrigger tendency to feel like an idiot at the slightest hint of social embarrassment.)


Posted by: LizardBreath | Link to this comment | 05-11-10 9:55 AM
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So: if a woman attends events with a female partner, publicly thanks that partner at awards shows, and etc., and everybody knows she's gay and has known for years...she's still closeted or semi-closeted because she hasn't made an official statement? I find this bizarre. Must every gay person in America submit to the ritual of the public confessional?


Posted by: Mary Catherine | Link to this comment | 05-11-10 9:56 AM
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One of my roommates has a t-shirt that says, in big black letters, "Nobody knows I'm gay." I don't know if he wears it in public or not. Other than the t-shirt (and the fact that he works in theater, but as a Web site administrator or something like that, not a stereotypically gay job even if it is a stereotypically gay industry), no one would ever guess it.


Posted by: Cyrus | Link to this comment | 05-11-10 9:56 AM
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Heh. I'm fairly sure that I'm mistakenly labeled lesbian by most of my neighbors. The anti-Prop 8 sign in my window, the (unfortunate) absence of men leaving in the morning, the tall gorgeous athletic woman who lives with me from time to time, the million lesbian friends. But if you can't show your partner, it is pretty hard to consistently display your sexual preferences. And since there's nothing WWT, I'll stay bemused.


Posted by: Megan | Link to this comment | 05-11-10 9:57 AM
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60: Suddenly, your reasons for having sex in your picture window with the lights on become clear.


Posted by: LizardBreath | Link to this comment | 05-11-10 9:59 AM
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Whirly-eyed Obama-bot that I am, I'm really intrigued to know what kind of eleven-dimensional chess game the president is playing with this one. I think we can take as axiomatic that the administration anticipated a public airing of Kagan's sexuality. Stipulating that she is, in fact, gay (a stipulation that I, a comparatively astute media consumer, would not have made as recently as yesterday), you have to assume that Obama knew there would be at minimum a minor kerfuffle, and that he consciously chose to pick that particular fight.

So what's his angle? I'm mystified. One can only hope that he thinks the wedge politics of gay rights now cut in the other direction, and that he expects an eruption of homophobia on the right to be a net winner for the Dems in November (or in 2012). That is, one can only hope that he's right about that.

As for Kurtz, his angle is clear. His M.O. has always been using the disingenuous "report on the controversy" angle to launder tabloid fare for mainstream consumption, so he was obviously trying to gin up some controversy.


Posted by: KR | Link to this comment | 05-11-10 10:01 AM
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I should get a neon sign saying STRAIGHT, with a curved arrow pointing to the action. I'll turn it on when there's something to see.


Posted by: Megan | Link to this comment | 05-11-10 10:02 AM
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she's still closeted or semi-closeted because she hasn't made an official statement?

She also needs to get it notarized.


Posted by: rob helpy-chalk | Link to this comment | 05-11-10 10:04 AM
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57.b: Huh. I vaguely remember that, but I don't remember what I said. I hope I can manage the same trick in the future when it's needed.

The ethics of reporting in the press that a public figure is gay probably need to be updated a bit in the NTTAWWT era. But it's complicated.


Posted by: Bave Dee | Link to this comment | 05-11-10 10:08 AM
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57: Well, the article I link to above says she does not and has not gone to public functions with her partner. And folks who have interviewed either Cooper or Foster say that they get told in quite strong terms beforehand that there will be *no* discussion of their private life, which, on the one hand, sure, I guess, but on the other, give me a break. If you're a celebrity, "How's the spouse?" or "Seeing anyone special?" questions really aren't beyond the pale. And folks don't object to that question unless they're being odd about something. So yeah, I can go out at night in LA and run into Jodie and her partner, or walk around Chelsea on a Saturday afternoon and see Anderson and his (hubba hubba handsome) boyfriend, but both of them go to great lengths to make sure they're never asked about such things, and, as I said, if you're a celebrity, that is just precious in the extreme.
I contrast this with Cynthia Nixon, whose career -- in a way that Foster's and Cooper's are not -- is really predicated on performing heterosexuality, but who, after a lifetime of dating men and marriage, came out as a woman with a same-sex partner. Not with a rainbow-flag parade, but with a simple announcement from her publicist that yes, I am dating a woman, and I'm very happy.


Posted by: oudemia | Link to this comment | 05-11-10 10:09 AM
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She also needs to get it notarized.

And not in the good, buttsex way.


Posted by: apostropher | Link to this comment | 05-11-10 10:10 AM
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The ethics of reporting in the press that a public figure is gay probably need to be updated a bit in the NTTAWWT era. But it's complicated.

It is, but I think Kurtz has got two options here. Report it honestly, or refrain from reporting it. Kurtz chose Option C: report it dishonestly.

Moreover (and here I know I'm being controversial) I think Option A - the honest report - is both inevitable and necessary.


Posted by: politicalfootball | Link to this comment | 05-11-10 10:40 AM
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66: Foster has had far more incentive to build a privacy wall and experience with maintaining it than most celebrities. She started young and has had to deal with stalkers since she was in her early teens (not just Hinckley). I think that lends her gravitas when it comes to declaring other parts of her life off limits. I know she's walked out of interviews when the "no questions about Hinckley" line was crossed. I admire her for that.


Posted by: togolosh | Link to this comment | 05-11-10 10:41 AM
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69: Sure to the Hinckley stuff, and perhaps it's even fair to say that that informed everything after. But in general, the "you may not ask me completely banal and anodyne questions about my 'private life'" line coming from a movie star is absurd.


Posted by: oudemia | Link to this comment | 05-11-10 10:44 AM
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Sorry, I might have missed something, but: are we really sure Kagan is gay? Or is that just a working assumption for this thread?


Posted by: Brock Landers | Link to this comment | 05-11-10 10:45 AM
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I think I'm relying on oudemia, who at 278 in the prior thread said that it's well known she has a long term partner. I don't know anything of my own knowledge.


Posted by: LizardBreath | Link to this comment | 05-11-10 10:50 AM
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71: Short answer, no. Lots of folks, few of them named, most of them on her side, say it was never particularly hidden in Cambridge.


Posted by: oudemia | Link to this comment | 05-11-10 10:51 AM
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70: In the existing context, yes. In a sensible world it would be routine. There should be absolutely no jobs where exposure of ones' private life is a prerequisite.


Posted by: togolosh | Link to this comment | 05-11-10 10:52 AM
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Well, right, 73 includes me, basically. I just didn't know if I'd missed something more solid somewhere. Maybe she just uses the term 'partner' more colloquially than most people do.


Posted by: Brock Landers | Link to this comment | 05-11-10 10:53 AM
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74: Well . . . movie stars make as much money as they do because people project onto them. If movie stars would like to just act and never discuss anything but their craft, I guess, but the world in which that kind of movie star exists is one in which they don't make a lot of dough. Also, a not very human one. (We're curious fuckers. That might be unseemly -- cue Leontius in Republic IV -- but that's how we are.)


Posted by: oudemia | Link to this comment | 05-11-10 10:57 AM
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71: Also, lots of gay websites just say flatly that she is and everyone knows it. Dunno. For example.


Posted by: oudemia | Link to this comment | 05-11-10 11:00 AM
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71: As I alluded to earlier, there is a combination sex tape/position paper that is really going to knock people's socks off.


Posted by: rob helpy-chalk | Link to this comment | 05-11-10 11:01 AM
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33: I get so happy whenever Mr. Smearcase talks about coming out in a small Kentucky town in the '80s, because for me it was a presumably larger one in '95 and I do think it's easier for each subsequent round of people because of the people who did it first, though I doubt I ever actually knew him or that I'd someday meet him here.

It's definitely less rare to be out in politics than it used to be, but I see a lot of local politicians going through the same scenario discussed above, where it's considered bad form to mention that they're gay. Napolitano -- if a lesbian -- never was outed (to my knowledge) during the hearing/approval process. I guess I wish if Kagan were going to say something she'd say it herself and soon; being outed is not a pleasant situation and not as satisfying for those of us who care about representation and normalization and whatnot.


Posted by: Thorn | Link to this comment | 05-11-10 11:01 AM
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79: Thank you. I can't tell you how lovely it is to read that.


Posted by: Mister Smearcase | Link to this comment | 05-11-10 11:15 AM
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Whirly-eyed Obama-bot that I am, I'm really intrigued to know what kind of eleven-dimensional chess game the president is playing with this one.

Bashing the hippies again, of course. The White House has set up a war room to counter the attacks from their left

Greenwald hippies, outers, whatever. Obama really doesn't like the left, and apparently likes Lieberman and Graham instead.


Posted by: bob mcmanus | Link to this comment | 05-11-10 11:17 AM
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and that he expects an eruption of homophobia on the right to be a net winner for the Dems in November (or in 2012).

You don't understand him yet. He wants to divide the left from the center. The right is irrelevant.

And as I said elsewhere, eruptions of homophobia usually benefit the right in turnout elections. Prop 8? This is predictable enough that it must be what Obama expects, and desires.


Posted by: bob mcmanus | Link to this comment | 05-11-10 11:21 AM
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Let me put it another way.

If Obama loses Congress in November he will blame Jane Hamsher.

Look, the guy is backing Specter and Lincoln against their primary opponents. He is not a mystery.


Posted by: bob mcmanus | Link to this comment | 05-11-10 11:24 AM
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Perhaps the people who might be favorably influenced in their attitudes by a celebrity coming out are precisely those people who would hesitate to believe that the celebrity was gay without a public announcement.

This is exactly true. Anderson Cooper would favorably influence a lot of people's attitudes if he came out.

Whirly-eyed Obama-bot that I am, I'm really intrigued to know what kind of eleven-dimensional chess game the president is playing with this one. I think we can take as axiomatic that the administration anticipated a public airing of Kagan's sexuality. Stipulating that she is, in fact, gay (a stipulation that I, a comparatively astute media consumer, would not have made as recently as yesterday), you have to assume that Obama knew there would be at minimum a minor kerfuffle, and that he consciously chose to pick that particular fight.

So what's his angle? I'm mystified. One can only hope that he thinks the wedge politics of gay rights now cut in the other direction, and that he expects an eruption of homophobia on the right to be a net winner for the Dems in November (or in 2012). That is, one can only hope that he's right about that.

I said this yesterday. Kagan is someone who would normally disappoint every liberal and leftist and might even inspire some opposition from liberals and leftists. However, once she gets attacked by the right wing, we will all rally around her like we did for Sotomayor.


Posted by: Cryptic ned | Link to this comment | 05-11-10 11:29 AM
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we will all rally around her like we did for Sotomayor.

No, we all won't, and that's the point.

Bitter divisions within the Democratic Party has been these peoples modus operandum since the announcement of Obama's candidacy. Most recently with the offshore drilling and nuclear power policies.

Bitter division is what they want.

Hell, it may be a core DLC principle and go back to the 80s. But "Sister Souljahing" is the heart of what they do and are.


Posted by: bob mcmanus | Link to this comment | 05-11-10 11:50 AM
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Assuming that Kagan is out enough that all of the other justices would meet her partner, and assuming that even ideologically opposed justices tend to become personal friends, is giving all the justices a gay friend likely to end up changing their views on anything?


Posted by: Unfoggetarian: "Pause endlessly, then go in" (9) | Link to this comment | 05-11-10 11:54 AM
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86: I feel pathetic believing this, but yes, I think it might have an effect.


Posted by: LizardBreath | Link to this comment | 05-11-10 11:55 AM
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Here is how it works

Matt Yglesias citing Eugene Volokh to attack Paul Campos of LGM.

Matt is a great lieutenant.


Posted by: bob mcmanus | Link to this comment | 05-11-10 11:56 AM
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86: There's the well-known story about how Justice Powell joined the Bowers v. Hardwick majority believing he had never met a gay person.


Posted by: Bave Dee | Link to this comment | 05-11-10 12:02 PM
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86: I think it's quite possible. Remember Bowers v. Hardwick? Powell was the deciding vote. He spent about thirty seconds thinking about it, according to his own admission, and then decided to uphold the law criminalizing sodomy. He later said he had never met a gay person before, and didn't think the law was all that bad. His own clerk, who was gay, thought about coming out to Powell during the deliberations and decided not to. Had he done so, would Powell have changed his mind? It's quite possible -- Powell later said that his deciding vote in Bowers was a mistake.

Bowers v. Hardwick isn't going to come up again, but gay rights continue to be a hotly contested issue, and I think it's entirely likely that some of the SC justices -- who are incredibly sheltered, cloistered old people -- don't really know gay people. If they worked alongside one, got to know her, and were forced to have a congenial, respectful working relationship with her, might that change the way they look at gay rights? It could.


Posted by: jms | Link to this comment | 05-11-10 12:06 PM
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Oops. I should have previewed.


Posted by: jms | Link to this comment | 05-11-10 12:06 PM
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You added value, jms.


Posted by: Bave Dee | Link to this comment | 05-11-10 12:14 PM
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Part of me wishes that Obama had surprised everyone by selecting Nina Totenberg as his nominee.

Another part of me wishes he had selected Nancy Pelosi as his nominee, thereby causing millions of right-wingers' heads to explode.


Posted by: MAE | Link to this comment | 05-11-10 12:35 PM
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86: no. outside chance it'd help? yes. But that's all. really outside chance. Among other things, never underestimate people's powers of exceptionalism "yes, I know on any remotely reasonable interpretation x a category to which you belong, but not you dear..." I've seen it for too many years in my bosses, and I have and work for folks with PhDs...


Posted by: middleagedqueerwoman | Link to this comment | 05-11-10 2:12 PM
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94: Maybe you're just one of the good ones.


Posted by: apostropher | Link to this comment | 05-11-10 2:22 PM
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58

So: if a woman attends events with a female partner, publicly thanks that partner at awards shows, and etc., and everybody knows she's gay and has known for years...she's still closeted or semi-closeted because she hasn't made an official statement? I find this bizarre. Must every gay person in America submit to the ritual of the public confessional?

Apparently this is a bizarre news industry convention, you can't mention someone is gay unless they have explicitly given you permission. Kind of like naming rape victims.

BTW how do bisexuals fit into all this? If bisexuals are considered different, Kagan could haved a female partner without being gay.


Posted by: James B. Shearer | Link to this comment | 05-11-10 6:55 PM
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Does Whether by ambitious design or by habit of mind, Ms. Kagan has spent decades carefully husbanding her thoughts code as butchy ?


Posted by: Econolicious | Link to this comment | 05-12-10 12:00 AM
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Ms. Kagan has spent decades carefully husbanding her thoughts

Oh, sure, she has her finger in the dike for now, but it's all going to come out in the confirmation hearing.


Posted by: Knecht Ruprecht | Link to this comment | 05-12-10 6:12 AM
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Politico says she's not gay, and has sources with names.


Posted by: politicalfootball | Link to this comment | 05-12-10 6:19 AM
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99: I have to say that all this unsourced "common knowledge" stuff reminded me of this story about Karl Rove smearing his opponent in an Alabama judicial election:

Some of Kennedy's campaign commercials touted his volunteer work, including one that showed him holding hands with children. "We were trying to counter the positives from that ad," a former Rove staffer told me, explaining that some within the See camp initiated a whisper campaign that Kennedy was a pedophile. "It was our standard practice to use the University of Alabama Law School to disseminate whisper-campaign information," the staffer went on. "That was a major device we used for the transmission of this stuff. The students at the law school are from all over the state, and that's one of the ways that Karl got the information out--he knew the law students would take it back to their home towns and it would get out." This would create the impression that the lie was in fact common knowledge across the state.

Which is not to say that Kagan is the victim of a deliberate smear campaign. Just that what "everybody knows" sometimes just ain't so.


Posted by: Knecht Ruprecht | Link to this comment | 05-12-10 6:33 AM
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God, how embarrassing. Part of my frustration with my job this year (almost over!) has been my co-workers' obsession with finding out whether I'm gay or not. I'm a 30-year-old unmarried woman? I don't have children? I talk about human rights as if they include LGBTQ rights? Verrry suspicious! No boyfriend? Hmmmm... I feel pretty strongly that people shouldn't need to know what kind(s) of genitals I prefer to get through a workday with me, or even what kind of genitals I have. But good Christ, people really do break you down. And when the answer is just that you're single (and therefore it especially shouldn't matter) then it becomes some deep inquiry into what is wrong with you. I suspect that this is not the end of this line of Kagan-bashing. If she doesn't even have a lover, she's basically not human.


Posted by: A White Bear | Link to this comment | 05-12-10 6:33 AM
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what kind(s) of genitals I prefer to get through a workday with me

Isn't any workday that leads directly to getting genitals a success?


Posted by: Sifu Tweety | Link to this comment | 05-12-10 6:36 AM
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101: Tell 'em you're a Furry.

I completely agree with this: I feel pretty strongly that people shouldn't need to know what kind(s) of genitals I prefer to get through a workday with me, or even what kind of genitals I have. But the Kagan case is rather different. I do want to know intimate details of the life and mind of anyone who is going to have a lifetime appointment to the most powerful court in the most powerful country on the planet. The SC has the literal power of life and death, and anyone who has ambitions to sit on the court ought to be willing to submit to the kind of detailed inspection of their life and character needed to assure people that they will be a good judge.

My preference when it comes to normal every day interactions is for everyone to mind their own damn business and not inquire into my (or anyone else's) sexual orientation, state of encouplement, or sexual interests, unless they are hoping to involve me in some nookie.


Posted by: togolosh | Link to this comment | 05-12-10 6:53 AM
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But the Kagan case is rather different. I do want to know intimate details of the life and mind of anyone who is going to have a lifetime appointment to the most powerful court in the most powerful country on the planet.

But why does it take on any extra significance if she likes her plumbing to match her partners? We've never debated the plumbing of the other 200 years of justices.


Posted by: heebie-geebie | Link to this comment | 05-12-10 6:57 AM
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The SC has the literal power of life and death

This is true of thousands of judges, police, armed private security guards, Florida homeowners, doctors, and venomous insects. Do you want to look at all their genitals, too?


Posted by: Sifu Tweety | Link to this comment | 05-12-10 6:58 AM
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Do you want to look at all their genitals, too?

Yes! Especially the venomous insects.


Posted by: OFE | Link to this comment | 05-12-10 7:00 AM
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103: Yeah, I go back and forth about it too, except that 104 is correct too. If you're in a couple, you get a pass on questions about your sexual history. If you're single, your sexual history is a subject for debate and analysis. Mightn't it be enough to know where someone stands on gay rights? Certainly there are plenty of gay Republicans who do everything in their power to limit gay rights.


Posted by: A White Bear | Link to this comment | 05-12-10 7:01 AM
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We've never debated the plumbing of the other 200 years of justices.

What kind of crappy debating society were you in?


Posted by: Walt Someguy | Link to this comment | 05-12-10 7:02 AM
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I do want to know intimate details of the life and mind of anyone who is going to have a lifetime appointment to the most powerful court in the most powerful country on the planet. The SC has the literal power of life and death, and anyone who has ambitions to sit on the court ought to be willing to submit to the kind of detailed inspection of their life and character needed to assure people that they will be a good judge.

No. I have to say, I'm a little bit creeped out by the impulse to ferret out every last detail concerning the intimate life of anyone, public figure or not. And of course it's always justified by some appeal or other to the public good, but that's just the pretext that the witchfinders always use. I strongly resist the notion that there should be no private space whatsoever for public persons.


Posted by: Mary Catherine | Link to this comment | 05-12-10 7:03 AM
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To elaborate, I'll give doctors a pass, but for the rest of your list, I think there's a strong case to be made that if they are acting in a way that gives them immediate power over life and death, they should be obliged to do so with their pants off, or their legal immunities no longer apply. Should concentrate their tiny minds.


Posted by: OFE | Link to this comment | 05-12-10 7:05 AM
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Actually very few venomous insects wear pants, and the ones that do don't seem very committed to the enterprise.


Posted by: Sifu Tweety | Link to this comment | 05-12-10 7:06 AM
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Is there any reason to believe that one's private choices have any correlation with how they'd act when telling everyone else what to do?

It seems like sufficiently many people have a massive divide between the rules for themselves and rules for others to make it a worthless yardstick. Half the people feel sympathy at the people who made the same mistakes they made, and half the people feel anger at them.


Posted by: heebie-geebie | Link to this comment | 05-12-10 7:08 AM
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OK, so the venomous insects are cool with this proposal. Now we need to impose it on the Judges, cops, Florida homeowners, etc.


Posted by: OFE | Link to this comment | 05-12-10 7:08 AM
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109: Yup. It seems absolutely unambiguous to me that I want to elect public officials who are publicly committed to the rights of LGBTQ persons, and do not trust that just because someone once had a gay affair or gay feelings, they will publicly stand for human rights. If John Roberts doesn't need an inquiry into everywhere he's put his dick, why do we need these embarrassing stories about Kagan crushing on dudes in law school?


Posted by: A White Bear | Link to this comment | 05-12-10 7:10 AM
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Do you want to look at all their genitals, too?

Do you even have to ask?


Posted by: apostropher | Link to this comment | 05-12-10 7:11 AM
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I don't think I would get 100% if I had to match the genitals to the supreme court justice. Or even better, if I had to match the genitals to their stance on abortion. I'd certainly bat 50%, I bet.


Posted by: heebie-geebie | Link to this comment | 05-12-10 7:13 AM
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Where is Jon LaJoie when we need him?


Posted by: A White Bear | Link to this comment | 05-12-10 7:13 AM
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109: I don't think it should be a general rule for public persons that their genitals and what they like to do with them are public business (or more to the point, who they love). In general people ought to mind their own damn business, but the US is in the middle of a big fight over exactly the issue of rights for non-straight people, and I'm not willing to stand on the principle of privacy for public figures at the expense of potentially hurting millions of private citizens. If that price is too high to pay, Kagan or whoever else can simply walk away. It's not like there's a massive shortage of people who want to serve on the Supreme Court.

105: I don't really want to look at anyone's genitals (present company excepted, of course). The issue is relative power: A cop can fuck up dozens of lives, but a Supreme Court justice can fuck up millions, and they have.


Posted by: togolosh | Link to this comment | 05-12-10 7:15 AM
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I don't really want to look at anyone's genitals (present company excepted, of course

But I don't have the Flikr password! Course the dogs don't have genitals anymore. And I don't know how to work the dig cameras, which have dead batteries.
Maybe I can do an ascii drawing in a comment.

I aim to please.


Posted by: bob mcmanus | Link to this comment | 05-12-10 7:23 AM
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You have to draw lines between what sorts of information belong in the public domain and what sorts don't, and those lines are necessarily going to be blurry and highly dependent on circumstance.

100 years ago, you could be a gay Supreme Court justice and not be questioned about it - as long as nobody knew. Today, it's the same, but there's also a lot more natural curiosity and discussion about sexual matters. This is a good thing.

I think it's incorrect to say that John Roberts faced no scrutiny for his sexual orientation, or that his sexual orientation was considered a private matter. He merely faced no critical scrutiny, and his sexual orientation was considered normal.

Someday we may get there with gay people, but I don't see any way to arrive there without treating gay people the way we treat heteros - as normal folks with normal biographical information.


Posted by: politicalfootball | Link to this comment | 05-12-10 7:38 AM
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We've never debated the plumbing of the other 200 years of justices.

Was Clarence Thomas' discussion of pubic hair in soft drinks not enough for you?


Posted by: Knecht Ruprecht | Link to this comment | 05-12-10 7:40 AM
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ASCII porn was from a simpler, more innocent time.

I think that in a generation or two, people are going to find it hard to imagine the order in which technological developments happened. For example, it will seem impossible to believe that the telephone is 100 years older than email, and that ASCII porn had a brief flourishing about 130 years after the invention of the real thing.


Posted by: Walt Someguy | Link to this comment | 05-12-10 7:40 AM
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According to Wikipedia, David Souter was once named by The Washington Post as one of Washington's 10 Most Eligible Bachelors.


Posted by: politicalfootball | Link to this comment | 05-12-10 7:50 AM
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why do we need these embarrassing stories about Kagan crushing on dudes in law school?

Because a single woman is still considered an affront to the natural order of things, apparently. Or a woman who is "still single" at a "certain age" (35? 40? 45? I'm not sure about the cutoff these days, since both men and women of the professional classes tend to marry later, but it's clear that a woman's single status is still something that needs to be justified/explained).

118: Your pretext really doesn't make sense to me. So Kagan is straight: does that mean she will vote against gay rights? I sure hope not. Or if she were gay, would that mean she could necessarily be relied upon to uphold gay rights measures? Of course not.


Posted by: Mary Catherine | Link to this comment | 05-12-10 8:23 AM
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ASCII porn was from a simpler, more innocent time.

Some people are Guescii porn culture, and some people are Ascii porn culture. Most, if not all, misunderstandings arise from clashes between these two groups.


Posted by: heebie-geebie | Link to this comment | 05-12-10 8:26 AM
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124: It's not a matter of individual characteristics so much as it is of being able to get a sense of the whole person. Gay or not is irrelevant, but how one conducts ones' private life isn't. I don't buy the idea that people are completely different in their private affairs than in their public dealings. If someone does something like what John Edwards did, that's a pretty good sign he can't be relied upon to keep his word, to act judiciously, and so forth. Access to information that would reveal such behavior is inevitably going to involve prying into private business, and that seems to me a reasonable price to ask of someone being given extraordinary power. It's no different than asking someone to give up private information in order to get a security clearance.


Posted by: togolosh | Link to this comment | 05-12-10 8:33 AM
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The straightness, whiteness and maleness of the Court has traditionally been a matter of public discussion and debate, and quite appropriately so.

Sotomayor was correct to point out that there is a difference between a wise Latina and a wise white man. Even Clarence Thomas's worldview is informed by his race. It matters.

I don't see that there's any particular line around sexual orientation that makes it different from race or other life experiences in this regard.


Posted by: politicalfootball | Link to this comment | 05-12-10 8:42 AM
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I haven't been keeping up with the threads: has anyone linked to this yet? It sounds like she's straight. Or, at least, was interested in men at one time.


Posted by: Brock Landers | Link to this comment | 05-12-10 8:51 AM
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I like to smell moth balls.


Posted by: JP Stormcrow | Link to this comment | 05-12-10 8:51 AM
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It's no different than asking someone to give up private information in order to get a security clearance.

No, it is different. When the FBI (or CIA, or whoever it is) does a thorough background check for a security clearance, the stuff they find out about you doesn't become fodder for cable news talking heads and talk radio jokes.


Posted by: MAE | Link to this comment | 05-12-10 8:51 AM
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Then why does she keep turning me down for dates? She always tells me that she's gay.


Posted by: Walt Someguy | Link to this comment | 05-12-10 8:52 AM
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I don't like either the intrusion into peoples lives OR the weird press conventions about mentioning homosexuality. I guess I come down to: I'd like to know, but am not going to chastize Kagan for trying to keep her private life private.


Posted by: Robert Halford | Link to this comment | 05-12-10 8:54 AM
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I don't buy the idea that people are completely different in their private affairs than in their public dealings.

I disagree, but unfortunately their having convinced a large segment of the American public of this is what lets Politico, etc., write about the subjects they do, which they presumably find more fun to cover than actual policy substance. I'll grant that a politician who would, say, pay another person to claim he's the father of the politician's illegitimate child might be revealing a relevant pathology. But I certainly don't think that's true of someone who merely had an affair.


Posted by: Mr. Blandings | Link to this comment | 05-12-10 8:55 AM
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130: I see your point. Also analogy ban violation on my part. I ban myself.


Posted by: togolosh | Link to this comment | 05-12-10 8:56 AM
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I don't see that there's any particular line around sexual orientation that makes it different from race or other life experiences in this regard.

The thing that makes it different is that you have to ask. No one had to ask Clarence Thomas if he was black. No one had to ask Sotomayor if she was Latina.

Now if Kagan's sexual preferences were something she talked or wrote about as something that shaped her views, as Sotomayor did with the "wise Latina" comment, I'd say that would be fair game for discussion. Absent that, I don't see how it's relevant.


Posted by: MAE | Link to this comment | 05-12-10 8:58 AM
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128 -- is there any chance that everyone involved in Above The Law could be sent to starve in a North Korean prison camp for the next 60 years? Because that would be nice.


Posted by: Robert Halford | Link to this comment | 05-12-10 9:00 AM
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99: she's not gay

Neither is George Rekers it turns out.

... I have not engaged in any homosexual behavior whatsoever. I am not gay and never have been.


Posted by: JP Stormcrow | Link to this comment | 05-12-10 11:48 AM
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from the link in 137: "NARTH continues to support scientific research, and to value client autonomy, client self-determination and client diversity."

Except for that "being gay" part of diversity. We are trying to get rid of that.


Posted by: rob helpy-chalk | Link to this comment | 05-12-10 11:50 AM
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From a letter at the NARTH site:

In the meantime, our son is unable or unwilling to work at anything productive. He spends too much time running around with his GAYDAR palm pilot and cruising the Internet for the love he so much wants and deserves but unknowingly will not be able to attain in a homosexual relationship.
I guess they are referring to this:
>When users request the status of a likely male target, the Gaydar performs a scan of a human figure, supposedly reading his thoughts and physical makeup. Upon finishing its analysis, the Gaydar pops up a Kinsey scale-like result of the subject's queer quotient, ranging from straight-but-curious to highly flammable.


Posted by: JP Stormcrow | Link to this comment | 05-12-10 12:18 PM
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For those of you who think that Kagan shouldn't be asked about her sexual orientation, I offer you objective proof that you are in error:

Will Saletan agrees with you.


Posted by: politicalfootball | Link to this comment | 05-12-10 8:36 PM
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140 is so disturbing a thought that I can't even click on the link.

I do have a question for the lawyers, though. It comes from >this LA Times piece, which says:

The Supreme Court is nearly ready to take up a challenge to a strict Arizona immigration law -- not the new measure that authorizes the police to arrest suspected illegal immigrants, but an earlier law that would punish employers who knowingly hire them.
All the court needs now is for the Obama administration and its solicitor general, Elena Kagan, to weigh in.
[...] In November, the justices asked Kagan to file a brief giving the administration's view on whether Arizona's sanctions on employers who hire illegal workers conflicts with federal immigration law. Months have passed, and no word has come from her office.
The justices have made it clear that they need to hear sometime in May so they can act on the appeal before the court's term ends in late June.

What does "they need to hear" mean in this context? The judicial branch isn't allowed to boss around the executive branch, right? So the Supreme Court can't actually order the Solicitor General's office to respond, can it?


Posted by: Witt | Link to this comment | 05-12-10 8:54 PM
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Is Paul Campos secretly trying to discredit the liberal criticism of the Kagan nomination? First we have comparisons to Harriet Miers and now a mega post saying in effect that she was an asshole to some Harvard 1L in class. The first is taking a reasonable point and making it absurd, the second is utterly irrelevant. What's next 'she's fat'? Other bloggers annoying me on Kagan - Sullivan (but that's par for the course) and John Cole.


Posted by: teraz kurwa my | Link to this comment | 05-12-10 10:16 PM
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Just as a follow on, I saw profs rip up unprepared students in grad school. These were seminars, and most profs had a policy of allowing you to not do the reading once in a semester, no questions asked, but you did have to tell them at the start of the class. Beyond that, if you didn't do the reading you were screwed.


Posted by: teraz kurwa my | Link to this comment | 05-12-10 10:35 PM
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Times have changed.


Posted by: nosflow | Link to this comment | 05-12-10 10:45 PM
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144: Indeed. DS's comment in that thread about history graduate studies - which I assume was very true for him - does not concur (originally, I wrote concord - is that even a vaguely plausible word choice there?) with any of my graduate courses. Then again, I was always the putz who read everything and then talked more than anyone else.


Posted by: Parenthetical | Link to this comment | 05-12-10 10:57 PM
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141: What the article means is that the Court has issued an order referred to as a "CVSG," for "call for the views of the Solicitor General." It is technically both an order and an invitation. The form of a CVSG order is: "The Solicitor General is invited to file a brief in this case expressing the views of the United States." I suppose the SG could technically refuse to file the invited brief, though in practice that never happens.

According to the Court's internal schedule, there is a certain cut-off date by which certiorari-stage briefing must be submitted in order for the Justices to have time to consider the briefs during the current Term. The SG's office knows when that date is. I'm actually not sure whether that date is published in any formal document, but I'm pretty sure the lawyers in any given case (i.e., not just the SG) can find out by calling the Clerk's Office if they need to.

The SG's office is almost always behind on invited amicus briefs (the process of consulting agencies and interested parties takes a while and also often gets put off until the current Term's merits cases are finished). But no one wants to offend the Court by missing the cut-off date and delaying some private party's case into the next Term. There is usually a big rush to finish the invited amicus briefs in the last couple of weeks.


Posted by: widget | Link to this comment | 05-12-10 11:03 PM
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More on the topic here from a former Assistant to the SG if anyone is interested.


Posted by: widget | Link to this comment | 05-12-10 11:08 PM
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Thanks, widget. That answers all of my questions. Except -- what's a "merits case"?


Posted by: Witt | Link to this comment | 05-13-10 10:28 AM
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Pardon my jargon.

The Court is asked to decide thousands of cases a year, mostly through a type of request called a petition for certiorari. Most of those petitions are denied, and when the Court denies a petition for certiorari it isn't formally expressing an opinion "on the merits" of the case -- it's not saying that the other courts to hear the case earlier got it right, it's just saying that for one reason or another it doesn't want to decide the case (usually because the case doesn't involve any important or unsettled legal issues).

The Court agrees to decide a small number of cases (in recent years, fewer than a hundred) on the merits. Those cases receive full briefing and oral argument in front of the Justices. A full merits brief is much longer and more detailed than a petition for certiorari. The Court then usually decides whether the previous rulings in the case were right or wrong, and its decision usually establishes precedent for how other cases will be decided.

The phrase "merits case" refers to one of these small number of cases that receive full briefing and argument.

The CVSG orders, to be clear, come only at the certiorari stage. What the SG is being asked to express are the views of the United States on whether the Court should grant the petition for certiorari. Sometimes the SG also expresses a view on the merits of the case; other times, not.


Posted by: widget | Link to this comment | 05-13-10 2:04 PM
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