Does it matter if she is? As a credential for the job, obviously no. Only her ideas matter in that regard. But Andrew Sullivan (someone whom I rarely agree with) makes a good point:
[Kagan's sexuality] is no more of an empirical question than whether she is Jewish. We know she is Jewish, and it is a fact simply and rightly put in the public square. If she were to hide her Jewishness, it would seem rightly odd, bizarre, anachronistic, even arguably self-critical or self-loathing. And yet we have been told by many that she is gay ... and no one will ask directly if this is true and no one in the administration will tell us definitively.Kagan's sexuality, whatever it may be, is hers to reveal. She's is under no obligation to out herself. Likewise, the press has every right to investigate the matter, however unseemly that investigation will surely be. This apparent contradiction reveals the untenability of hiding who you are. It's nobody's business, but why keep it a secret? It's easy to invoke privacy -- why should it matter?! -- but the invocation itself implies shame.
And that is the real shame.