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« Rasmussen: Sestak Tops Specter, 47-42 | Main | Shock: Chicago Sun-Times Runs Blurry Picture of Elena Kagan Engaged in College-Years Lesbian Activity »
May 10, 2010

Does Kagan Support a Constitutional Right To Gay Marriage? Her Implication Says No, But Her Evasion Says Yes!
Hey, Socialism's Pretty Cool Too

I agree with Allah -- her answer was a transparent dodge and tells us nothing.

Actually, the way she phrased it -- artfully, in definition 2b, meaning craftily and deceptively -- almost certainly means she does support a constitutional right to gay marriage.

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.

Ann Althouse says that's a present tense answer, rather than a subjective tense answer -- that is, whether there should be discovered such a right. I read it as a descriptive answer rather than a prescriptive one -- she's just telling us, as anyone could, what the state of the law is, rather than what she thinks it should be.

As Clinton said -- it all depends on what the meaning of "is" is.

She could have actually responded to this question and revealed her true thinking with a longer and more substantive response. Instead, she deliberately chose a brief answer with multiple interpretations.

She could have written a clarifying follow-up sentence -- either "But I believe the constitution does strongly suggest such a right" or "And nothing in our jurisprudence suggests such a right can be fairly discovered" -- but did not.

I don't believe that those who work in a profession where words are everything and ethical treatises are written on how to convey an impression without actually committing to that impression write things like this absentmindedly.

According to a jurist of impeccable judgment and wisdom -- a jurist in fact praised by Barack Obama himself -- Kagan should not be confirmed to the Supreme Court for her deliberate lack of candor:

If recent hearings [on the nominations of Justice Ginsburg and Justice Breyer] lacked acrimony, they also lacked seriousness and substance. The problem was the opposite of what Carter describes: not that the Senate focused too much on a nominee’s legal views, but that it did so far too little.… When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public.
I suspect that both [Ginsburg and Breyer] appreciated that, for them (as for most), the safest and surest route to the prize [of confirmation] lay in alternating platitudinous statement and judicial silence. Who would have done anything different, in the absence of pressure from members of Congress?
The kind of inquiry that would contribute most to understanding and evaluating a nomination is … discussion first, of the nominee’s broad judicial philosophy and, second, of her views on particular constitutional issues.… But responses to … questions [on judicial philosophy] can—and have—become platitudinous, especially given the interrogators’ scant familiarity with jurisprudential matters.… Hence the second aspect of the inquiry: the insistence on seeing how theory works in practice by evoking a nominee’s comments on particular issues—involving privacy rights, free speech, race and gender discrimination, and so forth—that the Court regularly faces.
[As for claims that such inquiry would compromise “judicial independence”:] The judicial independence that we should focus on protecting resides primarily in the inability of political officials, once having placed a person on the court, to interfere with what she does there. That seems a fair amount of independence for any branch of government.
[W]hat is worse even than the hearings themselves is … the evident belief of many senators that serious substantive inquiry of nominees is usually not only inessential, but illegitimate.

So, according to this jurist, Kagan should not be permitted by an acquiescent Senate to hide her views by offering up a combination of "platitudes" and "silence."

As you probably already know: The jurist making this criticism was none other than Kagan herself, before she learned the career-building value of platitudes and silence.

As noted moral philosopher John Bender observed: "Answer the question, Claire."

Whelen hits her hard, again, on barring military recruiters from Harvard over "Don't Ask, Don't Tell." It's not just that she did this in the first place -- it's that her principles only apparently demand that she hate the military over this, while conveniently permitting her to suck up to the Democratic politicians who created and voted for the policy in the first place.

After all, she had no plans of seeking a job with the military. On the other hand, she always had in mind jobs that Democratic politicians could grant her:

It’s also worth emphasizing that what Kagan mischaracterized as the “military’s policy” is in fact the Clinton administration’s implementation of a provision of the defense-appropriations law that a Democratic-controlled Congress enacted in 1993 (with Clinton’s signature). Instead of taking potshots at military recruiters who were merely complying with the law, did Kagan ever exclude from campus any of the politicians responsible for the law? Of course not. Indeed, whatever moral opposition Kagan had to the law when it was adopted didn’t deter her from seeking and obtaining employment in the Clinton White House. Nor will it keep her from palling around with the many senators who voted for it, such as Vice President Biden.

Sad About Socialism's Decline: Obama nominating a socialist? Who'd have imagined it.

From her senior thesis at Princeton:

Titled "To the Final Conflict: Socialism in New York City, 1900-1933," Kagan opined that infighting caused the decline of the early socialist movement. She asked why the "greatness" of socialism was not reemerging as a major political force.

"In our own times, a coherent socialist movement is nowhere to be found in the United States. Americans are more likely to speak of a golden past than of a golden future, of capitalism's glories than of socialism's greatness," wrote Kagan, Obama's solicitor general.

"Why, in a society by no means perfect, has a radical party never attained the status of a major political force? Why, in particular, did the socialist movement never become an alternative to the nation's established parties?" she asked.


"The story is a sad but also a chastening one for those who, more than half a century after socialism's decline, still wish to change America," she wrote. "Radicals have often succumbed to the devastating bane of sectarianism; it is easier, after all, to fight one's fellows than it is to battle an entrenched and powerful foe. Yet if the history of Local New York shows anything, it is that American radicals cannot afford to become their own worst enemies. In unity lies their only hope."

Her thesis was dedicated to her brother "whose involvement in radical causes led me to explore the history of American radicalism in the hope of clarifying my own political ideas."

Ask her about whether she believes in socialism and I'm sure she'll offer up the meaningless descriptivist statement, "Socialism is a theory of economics that does exist, yes."

digg this
posted by Ace at 05:44 PM

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