Is there anything left to say about the Domenech-Kagan affair? Howard Kurtz’s story in last Friday’s Washington Post describing the episode—in which CBS News invited the fury of the White House by posting an item by a conservative blogger that erroneously asserted that Elena Kagan, the solicitor general and a top candidate for the vacant seat on the Supreme Court, was “openly gay”—has already elicited plenty of commentary. And, as Dahlia Lithwick and Emily Bazelon write in Slate, the discussion has tended to circle around the “is she”/”isn’t she” question, which should be immaterial.
But before we take Lithwick and Bazelon’s good advice to shut up, it’s worth taking a closer look at how this episode unfolded. A little examination suggests that while this was hardly flawless journalistic practice, the element that may be hardest to understand is the angry response from the White House, which elevated a fairly obscure slip-up to a story that will hang over the rest of the nomination process.
Let’s start with the piece itself, which was written by Ben Domenech—a blogger best known for some prior journalistic sins—and published on April 11 on The New Ledger, a conservative Web site he edits. The post was a look at the “top 10” candidates for the court vacancy, with the political pluses/minuses for each; it was a pretty unremarkable bit of commentary, with the intended buzz coming from Domenech’s inclusion of Hillary Clinton at the bottom of the list. The claim about Kagan’s sexual orientation was listed as her “plus,” because it “would please much of Obama’s base.” (At least one critic has faulted Domenech for “reducing Kagan to her sexuality,” which is fair, though it’s worth remembering that none of the other candidates was the subject of a detailed exegesis.)
Domenech’s statement about Kagan has been described as him passing on a rumor, perhaps in service of a right-wing smear campaign. And he used that language himself in a subsequent response, in which he apologized to Kagan for his “repetition of a Harvard rumor.” But it seems more likely that Domenech just made a mistake. In a response at The Huffington Post, Domenech wrote Friday he believed Kagan was an out lesbian “because it had been mentioned casually on multiple occasions by friends and colleagues—including students at Harvard, Hill staffers, and in the sphere of legal academia—who know Kagan personally.”
Asked via e-mail if he’d done anything to confirm that understanding before publishing the post, he elaborated:
I was not under the impression I was outing her in any way—I thought, as apparently many others did, that she was openly gay. I have a close Democrat friend who went to Harvard Law and knew Kagan there, and she had confirmed this to me a few days prior to writing the piece. I also shared the post in advance with a group of high-level DC/NYC attorneys just for the sake of fact-checking and reactions to my characterizations of the candidates, and none of them said anything about the description of Kagan being wrong.
But after the post went live at The New Ledger, Domenech says, another source from the legal world contacted him to say Kagan was not in fact out. He looked around on the Web, discovered that the topic is an issue of abundant speculation on gay and lesbian blogs and news sites, and added an update the same day which said that “Kagan is apparently still closeted—odd, because her female partner is well known in Harvard circles.”
It was a strangely worded update—if accurate, it amounted to an acknowledgement of outing Kagan, a practice that’s generally frowned upon, at least by the mainstream media; and the reference to “her female partner” feels gratuitous. But it’s also not clear exactly what Domenech should have done at that point, based on what he believed he knew: if he had inadvertently outed her, the damage was done.
What clearly should not have happened was what happened next: a few days later, CBS, which has an arrangement to republish some of Domenech’s material in its opinion section, picked up the post, with both the claim about Kagan being “openly gay” and the update about her being “still closeted” intact. That language should have been a big red flag saying “you’re about to out the solicitor general on a major news site”; the fact that it went live nonetheless suggests no one at CBS even read the item before posting it. (Both Dan Farber, the site’s editor, and a CBS spokeswoman declined to comment, though Farber told Kurtz the piece “just got through our filters.”)