The question being batted around now is should the newspaper have published the controversial shot at all? Some say yes and others say no. And a few are interpreting it as another piece of evidence that Rupert Murdoch is using the respected newspaper as a bullhorn for his own conservative views.
"You don't have to be a cynic to think that the Journal chose the 2-decade-old picture to imply Kagan is a lesbian," Ryan Chittum wrote in the Columbia Journalism Review.
He argued that the paper couldn't have been ignorant of the sexually infused media chatter permeating the country's discourse about the Supreme Court nominee. Choosing the photo was a deliberate and successful attempt at quietly tapping into the buzz to support Murdoch's conservative viewpoint. And that, Chittum wrote, is something that never would have happened before Murdoch bought the Journal in 2007.
"I worked at the paper for nearly six years in the pre-Murdoch era. Call me naive, but I never saw a political agenda one way or the other under Paul Steiger, Marcus Brauchli, and Peter Kann," Chittum wrote. "I thought we were the most scrupulously nonpartisan paper in the country (for better or for worse). This isn't to mention the sensationalism that's now fairly routine in a paper that once was the antithesis of hype."
Her own sexuality aside, Kagan is a target for the conservative right because of decisions she has made in the past in favor of gay rights. Last year, Slate.com wrote an article about potential replacements for Justice David Souter and the right's dislike of those candidates who were gay or who supported gay rights.
"Although she has taken pains to welcome conservatives onto campus, Kagan is targeted by the right for being 'gay friendly' because she took sides in a Supreme Court case in which several law schools objected to the military's policy on gay servicemen and servicewomen," Dahlia Lithwick and Hanna Rosin wrote in the article.
If The Wall Street Journal were sending a subliminal message Tuesday, then Murdoch's other New York newspaper, the New York Post, fell in lockstep with its comrade. A Post article today asked in its headline "Does a picture of Elena Kagan playing softball suggest she's a lesbian?" Then it answered its own question with a resounding "yes."
"Despite being wildly popular with both sexes, the game is to gay women what stickball is to Brooklyn," the article read.
A second story appeared in the Post today with the headline "Kagan, critic of 'softball hearings,' says she'll handle any pitch." Readers who ventured beyond the headline into the article discovered that it actually had nothing to do with the infamous picture, but instead concerned a critique Kagan once wrote saying that Supreme Court confirmation hearings had little substance to them.
The Wall Street Journal has denied that sexual implications were intended when it published the photo.
Fast Company editor Jeff Chu asked, "NYTimes and WSJ both feature Elena Kagan's softball pics. What exactly are they trying to suggest?" The Journal's deputy managing editor, Alan Murray, responded with his own tweet, "That she played softball?"
Murray told Politico the question was "absurd." Journal spokeswoman Ashley Huston said, "If you turn the photo upside down, reverse the pixelation and simultaneously listen to 'Abbey Road' backwards, while reading Roland Barthes, you will indeed find a very subtle hidden message."
At face value, Murray's and Huston's responses have the most clarity to them. Not all women softball players are lesbians and not all lesbians are softball players. Drew Cline, an editor at the Union Leader in New Hampshire, tweeted, "A pic of Elena Kagan playing softball suggests she's gay? I must be insufficiently political. I thought it suggested she was American."
Fox News commentator and busybody blogger Greg Gutfeld wrote today that it's the gay community's fault for outing Kagan.
"The fact is, this so-called 'whispering campaign' over Kagan's sexuality wasn't started by an average Joe or even an angry right wing preacher. The whispering is from the media -- and busy-body bloggers, mostly on the left, who have too much time on their hands and too much identity politics in their heads."
And, according to Gutfeld, it's the media's fault for keeping the issue alive.
"Yeah -- the rumor persists, because you keep writing 'the rumor persists,' you jackass," he writes.
Given that the phrase in question appears three times in Gutfeld's 300-word blog post, he may have proved his point.
Amid the hullabaloo, there may be only one source truly qualified to comment on Kagan at the Bat and that source is Major League Baseball, which took the opportunity to interview players from the Washington Nationals (Kagan's current hometown) and the New York Mets (Kagan's home team).
Overwhelmingly, players reported she displayed a strong, well-balanced stance.
"I can't tell her what's coming," Nationals' catcher Ivan Rodriguez said. "The only thing I could tell her would be, 'Be ready. Be ready to swing.' "