This morning President Obama nominated Solicitor General Elena Kagan to be on the Supreme Court. But few people are talking about her qualifications. They only want to know if she's into the ladies. Let's look at the facts, shall we?

Kagan has only been Solicitor General since last January; before that, she was the dean of Harvard Law School. She's never served as a judge before, which means she doesn't have a judicial record to consider. That also means her confirmation hearing is probably going to be dominated by rumor and speculation. The first and most obvious: Is she a lesbian? No one really knows for sure except Kagan (and her romantic partners, of course). But let's look at both sides of the question.

The Case that Kagan Is a Lesbian:

  • The haircut: Let's just get this out of the way. Kagan has a dykey haircut. Yes, it borders on stereotype, but the easiest way to spot any lesbian is based on her tonsorial choices and Kagan's short 'do says more "Melissa Etheridge concert" than it does "wash-and-go busy professional." That's not good or bad, it just is.
  • She's never been married: Sure, she might be a career woman too busy for love, or perhaps she never found the right person to marry. But she is almost 50 and still single. That sounds pretty gay, because gay people can't get married. (Then again she's been living in Massachusetts for the last several years and gay marriage is legal there.) Still, that's all many people need for a swift conviction on charges of gayness.
  • She's opposed to "Don't Ask, Don't Tell": Long a thorn in the side of the gay civil rights movement, Kagan is staunchly against the policy that has kept gay soldiers from serving openly. She called it "a moral injustice of the first order" and filed a amicus brief when the matter reached the Supreme Court. When she became dean of Harvard Law in 2003, she tried to kick military recruiters off campus because of her concerns about discrimination. The plan didn't go through because it would have cost the school millions in federal funding. But it does raise the question of whether this is a personal issue for Kagan, or just about her opposition to any form of discrimination. In any event, you can expect right-wingers to use her anti-DADT stance to insinuate she's a big ol' dyke.
  • She played softball: When she worked at the University of Chicago, she played softball. There are pictures to prove it. Sorry, but softball=lesbian.
  • She wears plaid: Okay, since we're digging out the circumstantial evidence, there is a picture of Kagan from 1977 where she is wearing a plaid, flannel shirt. Sorry, but, like softball, flannel=lesbian.
  • The mayor of Gaytown has endorsed her: Andrew Sullivan, who is the ringleader of the "gays into politics," says that she is part of his gay club. "She is, according to large numbers of people who have known her, a lesbian," he says. If anyone knows the truth, it's Gay Uncle Andy.
  • She's never denied the rumors: The Kagan lesbian rumors aren't new, but she's never made a public statement denying them. Here's the basic rule on gay rumors: If someone doesn't deny them or won't talk about them, then they are true.
  • Obama digs lesbian judges: When Obama was looking at replacements for Justice Souter last year, two lesbians were seriously considered for the slot that eventually went to Sonia Sotomayor. This has no bearing on Kagan specifically, but it shows the administration isn't completely petrified of nominating someone of the Sapphic persuasion.
  • The gay establishment is suspiciously quiet: Sure, Andrew Sullivan has said she's gay (as have several gay blogs), but much of the gay media has been mum about Kagan's sexuality. Is this because they're waiting for her to get her seat on the court first and don't want to rock the boat until then? It's entirely possible.
  • CBS News reported it: When Kagan's name was first floated last month, CBS News published a post by Republican blogger Ben Domenech calling her the "first openly gay justice." When pressured about the veracity of his claim, Domenech added to his post, "I have to correct my text here to say that Kagan is apparently still closeted—odd, because her female partner is rather well known in Harvard circles." Oh, so there's a partner? It's beginning to sound like Kagan is living in a glass closet, going about campus with her lady lover, but refusing to confirm it on the record.

The Case that Kagan Is Not a Lesbian:

  • CBS retracted its story: After pressure from the White House CBS took Domenech's post down. An anonymous source in the Obama administration told the Washington Post that Kagan wasn't a lesbian. If the administration came out and declared that she's not gay, she might not be. Even worse than trying to sneak a lesbian Supreme Court justice past the country's virulently homophobic right wing would be getting caught lying about it.
  • She's against same-sex marriage: Before her confirmation as Solicitor General, the Judiciary Committee gave her a list of questions to answer, including one about same-sex marriage. She responded that "there is no federal constitutional right to same-sex marriage." These days, any homosexual who wants to hang out with other homosexuals can't be against same-sex marriage. It's stupid. And unfashionable, too. Even more damning is her answer to a question asking if she has ever expressed an opinion about the constitution containing a right to gay marriage. "I do not recall ever expressing an opinion on this question," she responded. If she were actually gay, she must have expressed this opinion, even in cocktail conversation with the ladies during a weekend in P-Town. So, if she's not expressing opinions, she's probably straight. Unless she means it semantically and hasn't expressed her opinion as a judge. Then she's just a dodgy lesbian.
  • Obama doesn't want this nomination to end badly: The White House can't afford a loss right now, and they're looking for someone who can make it through the confirmation process. Sure, Kagan breezed through hearings to become Solicitor General. But this is the Supreme Court we're talking about and conservatives are going to be guarding the gates a lot more diligently to keep out any "activist" (read: lesbian) judges. That means Kagan is either sufficiently straight or sufficiently closeted to make it through the process.

Verdict: Between the hair, the softball, the "open secret" at Harvard, the purported partner, and the Andrew Sullivan outing, I'm going to go ahead and guess she's gay. It should be interesting to see how her orientation plays out during the confirmation process and whether or not anyone on the Judiciary Committee will come right out and ask her.

[Image via AP]