Nine years ago Andrew Sullivan was caught up in a sex scandal when an anonymous personal ad he took out on a site called barebackcity.com was exposed by gay journalist and outing proponent Michelangelo Signorile. Sullivan claimed that he was a victim of "sexual McCarthyism" and sampling Clarence Thomas, called the whole incident the "high-tech lynching of an uppity homo." Back then, I defended Sullivan’s right to sexual privacy. But I also noted that given the fact that Sullivan had made a career of lambasting the sexual promiscuity of fellow gay men (including analogizing unprotected oral sex with murder), as well as the peccadillos of our first "queer" president, Bill Clinton—Sullivan had opened himself up as a target. What he wanted was not sexual privacy (an ethic extending to all), but sexual secrecy for himself with the attendant hypocritical right to wag his finger at those whose secrets became hot public messes.

I’m reminded of this ancient history because Sullivan is now arguing that Supreme Court nominee Elena Kagan should be interrogated about her sexual orientation, presumably including during her Senate confirmation hearing—call it the high-tech lynching of an uppity ambiguous Harvard dean. Sullivan’s claim is that in the context of several gay rights cases facing the court in years to come, a Justice’s sexual orientation will affect her judgment (presumably towards a pro-gay result), and so the public has a right to know, according to Sullivan, about Kagan’s "possible life-experience as a gay woman" and whether or not Kagan has a spouse who is "going to be forced into the background in a way no heterosexual spouse ever would be?" Sullivan seems to think that this whole inquiry would be a good thing, and that gay people would be able to claim Kagan’s nomination as some kind of gay rights victory, even if it would trample all over Kagan’s privacy.

Sullivan’s reasoning is so naive that I have to wonder if there’s some bizarre ulterior motive behind it—or if he’s exorcising some old demons. Surely he knows that Kagan does not have a spouse (man or woman) and that she has never identified herself as gay. What exactly does he think is going to happen now? Does he imagine that Kagan, in an uncharacteristically un-butch moment, is going to break down in front of Orrin Hatch and tearily confess to having cloistered away a secret lesbian lover in some Cambridge bat cave because she was worried that Alan Dershowitz would be really really mean to her about it? Because that would go over really well for gay rights—what a role model!—never mind Kagan’s confirmation.

The only side this line of questioning helps is the far right, who have already mounted a whisper campaign insinuating that Kagan is a closeted lesbian because she refused to allow military recruiters onto campus because of the military’s don’t ask, don’t tell policy—a decision in line with many law schools at the time. "Gay Rights Advocate," they repeatedly call her, even though she has also said that she doesn’t think there is a constitutional right to same-sex marriage.

But beyond the matter of Kagan’s nomination itself, Sullivan advances the notion that it is legitimate, indeed mandatory, to grill minority (or perceived minority) nominees about their personal experiences and to force them to answer how those experiences would affect their views of the Constitution. It’s one of those interesting points where a left-liberal impulse to trumpet diversity (even when it is not actually there) as a value (think Sotomayor) backs into right-wing racial (or sexual or gender) determinism (think, wise Latina blowback). Just once I’d like to see this double-standard—complicated in Kagan’s case by the perception that she’s in the closet—applied to straight white men. Tell me, Judge Roberts, about your heterosexual life experiences? How do you think your bountiful virility (or lack thereof?) will affect your opinions about privacy?

I don’t know if Elena Kagan sleeps with women or men. I don’t know if she sleeps with anyone at all. I don’t care. What I do know is that she has never claimed to be a lesbian, that she’s never spoken out in the first-person as an advocate of gay rights and that she has never publicly discussed a romantic relationship with a woman. Gay isn’t some genetic or soulful essence; it’s a name you call yourself–and Kagan has not done that. So in my book, case closed. Elena Kagan is not gay.  Is she straight? I don’t know, and again, I don’t care. Why does she have to have a sexuality at all?

In a way, the mystery about her sexuality mirrors the mystery about her legal philosophy. We just don’t know a whole lot. The Senate and the press have the right and responsibility to interrogate her about her legal opinions—not about her sex life.