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.”)
Asked why he had allowed the post to be picked up in that condition, Domenech said he had e-mailed the link to CBS when the item first went live at The New Ledger; since several days had elapsed, he had assumed it wouldn’t be used. “Had I known they were going to [republish it] and in the absence of a statement from [the White House] or Kagan I probably would have rewritten that section to just not mention it at all because it was clear as mud,” he said.
Besides CBS’s failure to flag the item, what else should have been done differently here? Farber, who told Kurtz that Domenech had engaged in “pure and irresponsible speculation,” declined to comment on what would have constituted responsible reporting. For his part, Domenech said, “If I had thought it would be this controversial, I would absolutely have called her office to ask first.” The trouble, of course, is that he didn’t think it was controversial—in addition to what he’d been told by people he believed were in a position to know, it would hardly have been an unprecedented development, as two other people whose names have been bandied about for the court, Pam Karlan and Kathleen Sullivan, are “openly gay” (and nobody expects reporters to call their office for confirmation every time before they report that fact).
Still, relying on secondary (or tertiary) sources is hardly ironclad, and given the unfortunate skittishness that still surrounds homosexuality in our political culture—not to mention the difficulty involved in beating back misinformation once it’s been published—Domenech should have done more to confirm what he believed. If he’d even taken to Google or Lexis to find an instance of Kagan discussing her sexual orientation, this whole mess might have been avoided when he failed to find one. He can take his lumps. But as mistakes go, this seems a fairly ordinary one.
And it might have remained a fairly inconsequential one, if the White House had not seized on it. But according to Kurtz’s article, the White House wasn’t satisfied until CBS deleted the entire post. Then, when contacted by Kurtz, a White House spokesman said the story had contained “false charges”—as if being gay is a serious offense—and Anita Dunn, who’d led the way in the White House’s feud with Fox, broke out the heavy verbal artillery, essentially questioning CBS’s journalistic integrity. As Alex Pareene and Chris Rovzar note, the intensity of this reaction is mystifying. Being gay is not a bad thing. Domenech’s item didn’t say it was a bad thing. And while, despite the fact that being gay is not a bad thing, outing someone generally is a bad thing, according to the White House Domenech hadn’t even outed Kagan, because she’s not gay! As Pareene said, “Wouldn’t it be much nicer and more progressive to politely ask for a correction and say it’s no biggie?” Based on what we know, it’s hard to understand why the White House didn’t do that, and also hard to understand why CBS acceded.