I can’t say I know much about President Obama’s second nominee to the U.S. Supreme Court, but from what I can see so far, it could have been worse. Appointing Solicitor General Elena Kagan as William Saunders in his earlier review of potential nominees said:
She was recently dean of the Harvard Law School, where she earned praise from conservatives as a fair-minded dean who welcomed reasoned debate and conservative voices. Does that, however, damage her with Obama’s leftist base? Perhaps a more important countervailing consideration is that her proven ability to work well with “conservatives” may make her effective at persuading Justice Anthony Kennedy, the key “swing vote” between the liberal and conservative “blocs” (each with four votes), to vote with the liberals. (This is a gross simplification, but, I hope, nonetheless instructive as to how the Court is likely to vote on important social issues – judicial activism or judicial restraint? It is usually a 5-4 split.)
I’m concerned that since she has not been a jurist there is no record of decisions that she has made, so she’s really a wildcard. Marjorie Dannenfelser of the Susan B. Anthony List expressed that same concern in relation to her position on Roe v. Wade:
Elena Kagan has no judicial record from which to determine her position on Roe v. Wade, but she has publicly criticized the 1991 Supreme Court ruling to allow the Department of Health and Human Services to restrict funding from groups that performed or promoted abortion, and has also criticized crisis pregnancy centers. Additionally, President Obama has said he prefers a Supreme Court nominee who would take a special interest in ‘women’s rights’—a barely masked euphemism for abortion rights. Through the judicial confirmation process the American people must know where Elena Kagan stands on the abortion issue, and it is the responsibility of the U.S. Senate to find out.
The Susan B. Anthony List pointed out two examples that should give prolifers pause about this appointment:
Previously, Elena Kagan publicly criticized a 1991 Supreme Court ruling in Rust v. Sullivan that upheld the right of the Department of Health and Human Services that restricted Title X funding from groups that performed or promoted abortion. Additionally, she has expressed her belief that pregnancy centers should be barred from guiding teens in decisions about their pregnancy.
William Jacobsen at Legal Insurrection pointed out the irony of this appointment as it relates to the gay marriage debate.
In response to a question from Sen. John Cornyn (at page 28 of her Senate Judiciary Questionnaire), Kagan stated flat out that there was no constitutional right for same sex couples to marry (emphasis mine):
1. As Solicitor General, you would be charged with defending the Defense of Marriage Act. That law, as you may know, was enacted by overwhelming majorities of both houses of Congress (85-14 in the Senate and 342-67 in the House) in 1996 and signed into law by President Clinton.
a. Given your rhetoric about the Don’t Ask, Don’t Tell policy—you called it “a profound wrong—a moral injustice of the first order”—let me ask this basic question: Do you believe that there is a federal constitutional right to samesex marriage?
Answer: There is no federal constitutional right to same-sex marriage.
b. Have you ever expressed your opinion whether the federal Constitution should be read to confer a right to same-sex marriage? If so, please provide details.
Answer: I do not recall ever expressing an opinion on this question.
This doesn’t mean that Kagan opposes gay marriage. But she clearly believes it is a matter for the political process, not a constitutional right.
While it is not clear what view the other Justices have, it is likely that a Kagan on the Court will put an end to any ultimate chance of success in the federal lawsuit lawsuit filed by David Boies and Ted Olson to have California Prop. 8 declared unconstitutional.
Reasonably assuming the four conservative judges share Kagan’s view, there now will be a definite majority on the Court against recognizing a constitutional right to gay marriage.
Interesting. You can find a pretty comprehensive Kagan primer here. Also, on a less than serious note – do you think that Kagan looks eerily similar to actor Kevin James?
HT: Brian Getz via Facebook (who, I must point out, is to the left of me)