Kagan Will be Confirmed

There are only two people who will have an opportunity to stop Elena Kagan from becoming a Supreme Court justice: Barack Obama and Elena Kagan. Obama can withdraw her nomination if he, for some reason, starts to question his choice. Yeah, right; when has he ever admitted to making a bad decision? Kagan can kill it by falling to pieces at her confirmation hearing. No, I don't expect that to happen either.

The reason is simple: there's just nothing about her to hook a filibuster on. She has no judicial experience, but then neither did Rehnquist when he joined the Court. So that's not really opposition material. She's definitely a Leftist—she worked for Dukakis and then President Clinton and gave money to Kerry and Obama—but then so is everyone else on the President's list of possible nominees and so was Ginsburg, Sotomayor, Warren, and a dozen other justices. Again, not really a ready argument for brining out the big guns.

The major knock against her is that her record is thin, but that's why it's hard to point out things that would cause enough senators to oppose her to make it worth the effort. She made a bad call about letting military recruiters onto campus (and she was hardly a lone decisionmaker in that), but she's not anti-military.

She handled a plagiarism scandal involving two Harvard Law professors by giving them slaps on the wrists and ultimately protecting them from any further consequences for their lack of integrity. Is that her right as Dean? Yep. Could there be good reasons for doing it? Yep again. Hardly something to hang a filibuster on.

She was on the Goldman Sachs research advisory council from 2005 to 2008, for which she received a $10,000 stipend in 2008. The council was formed to advise the company on public policy issues. Should it cause her to recuse herself from any Goldman cases that make it to the Court? Probably. Is it enough to reject her as ineligible for the Court? Of course not.

And that's about it. Unless you believe—like anti-gay organization Americans for Truth—that the public has a right to know whether she's a lesbian and—like the American Family Association—that lesbians are not qualified to be Supreme Court justices. I have no idea whether she's gay or not, but there is no right to forced outtings of gay people. It has no bearing on her eligibility for the Court, so it's none of our business unless she chooses to share. To this point, she's remained remarkably mum about her private life. But isn't that exactly the type of non-flaming, non-flaunting, non-stuff-it-down-our-throats gays folks on the right want?

The last thing is her answer on the constitutional right to gay marriage. She gave the "right" answer (No.), but that's been taken as evidence that, well, she lied. Okay. I don't know whether she lied or attempted evasion or not. I expect that she did evade, but then so have every justice since Ginsburg and most Senate-confirmable nominees. The point is to say as little as possible. Does that suck? Of course, as Kagan wrote in 1995 that makes confirmation hearings vapid and pointless. But she's hardly alone in playing that game and since it didn't give a reason to end Roberts' or Alito's bids for the court (yes, they did it too) it doesn't give a reason to end Kagan's.

As a matter of interest, by the way, finessing Kagan's answer does not rely on an absurd Clintonian examination of the meaning of "is." I could tell you honestly that I do not believe there is or should be a federal constitutional right to gay marriage. As a matter of substantive due process, there is no such right. I suspect that's what Kagan meant when she wrote there was no right to gay marriage.

Be cautious, however, because there is a constitutionally-protected right to equal protection. That is a right against unwarranted discrimination, which means that although there is no substantive right to government-licensed marriage, there is a right not to be discriminated against in government licensing. In other words, the Constitution does not require that the government provide civil marriages—no substantive due process right—, which means states could constitutional refuse to grant marriage licenses if they wanted to. However, it does require (the argument can be made) that if the government chooses to provide civil marriages, it must do so without discriminating on the basis of sex—an equal protection right.

Just so you know. If the courts overturn Prop 8 and other state bans on gay marriage, it will be under the equal protection rubric, not substantive due process. Similarly, if the courts overturn section 2 of DOMA, it will be because of equal protection.

Anyway, Kagan's the best we're likely to get out of Obama's short list. She's not going to be filibustered (wanna bet on it?) and she'll be confirmed without much circus unless she trips all over herself at her hearing.

posted by Gabriel Malor at 09:50 AM

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