Further Kagan Blogging

10 05 2010

So the blogosphere has had the overnight period to digest this pick by President Obama.  Based on the various Memeorandum links, it seems that Kagan’s nomination will go smoothly, compared to the process Justice Sotomayor went through last year.  Newsweek sez:

There’s reason to believe Kagan will be confirmed, and quickly. In her hearings last February to become solicitor general, the questions were relative softballs from both sides, mostly because her past didn’t contain many smudges to magnify. Having never been a jurist, the usual process of dissecting old opinions didn’t happen last time, and won’t this time either. Nor are controversial comments from past speeches (i.e. a “wise Latina”) likely to surface, as anything truly explosive probably would have been dug up by opponents during her last appointment to top government office.

You have to be kidding me.  A smooth nomination process in this increasingly bitter political atmosphere?  Surely there’s a catch!

Yet there will be two things working against Kagan. Supreme Court confirmation hearings are notorious for being relatively void of substance. Answers to senators’ questions are usually polite yet empty platitudes, explaining that it would be improper to state a judicial opinion on an issue that could come before the Court. But in 1995, Kagan lamented that very method. Recalling her position as a frustrated staffer for then-Senator Joe Biden, Kagan complained that high court nominees shouldn’t be allowed to “stonewall” the judiciary committee and should have to reveal their “broad judicial philosophy” and “views on particular constitutional issues.” If she goes through the same motions, any member of the committee – from either party – could be expected to call her on it.

One other obstacle could turn out to be Kagan’s prevalence of recusal. As solicitor general, she has either argued or submitted briefs in cases about dozens of issues. If any of those questions come up with her on the bench, many of which are inevitable, having already revealed her bias may force her to recuse herself in up to 30 percent of her cases during her first year—a number far higher than normal for freshmen justices. That could be both good and bad. Republicans might welcome having one less left-leaner on the bench on contentious issues. But Democrats, having said goodbye to their most reliable liberal, won’t like the idea of their rookie sitting frequently on the sidelines.

So this could be a double-edged sword, if the cases she submitted briefs for come up to the Supremes.  And what if she gets called on her remarks about outlining a judicial philosophy?  Will we hear about it during the Senate hearings?

Newsweek argues that Kagan is more of a centrist than Justice Stevens is, which may help the court swing to the right more if she gets confirmed.  No doubt this will help her chances with an often-obstinate Republican Party when she comes to a vote.

But there is, of course, more to this than meets the eye.  There are some controversial issues that may arise in the next few weeks.  For example:

Although Republicans did not immediately signal that they would try to prevent a vote on Kagan, they are certain to grill her in confirmation hearings over her experience, her thin record of legal writings and her objections to the military’s policy about gays.

As Harvard Law School dean, Kagan openly railed against the military’s “don’t ask, don’t tell” policy regarding gay service members. She called it discriminatory and barred military recruiters over the matter until the move threatened to cost the university federal money.

Kagan later joined a challenge to a law allowing colleges to be stripped of federal money if they kept out the military recruiters. But the Supreme Court upheld that law unanimously.

And even more:

Both the left and the right will take note that her resume is rather thin for the Supreme Court.


There is also another issue bubbling up on the left. It seems to hint at Kagan being a racist for not having enough diversity in her hiring practices. Depending upon how much the left hates her, this charge may become more explicit. Time will tell.


Liberals dislike her support for strong executive power and her outreach to conservatives while running the law school.

Lawyers, Guns, & Money has a brief post opposing this nomination here, and Salon rebuts liberal criticisms of Kagan here.

Now one of the most obvious things that will be bandied about in the days to come is the rumor that Ms. Kagan is a lesbian.  I don’t know if she is or not (and frankly I don’t care), but this rumor has been discussed at length by pundits overnight.  Let’s see an example.


And why do we care?  Well, if the White House is lying that is always fun for the Senate.  And the gay rights agenda has stalled legislatively and is headed back to the courts, where gay rights strategists will be hoping to find friendly judges (e.g., in California).  Given that, it seems a bit much to expect that a White House denial will be accepted at face value.


Let me remind people of the circular logic in play not that long ago – gays were a security risk because their behavior was shameful (and illegal) and exposed them to the threat of blackmail.  If Ms. Kagan is that intent on preserving her privacy, then she is also at a bit of risk here, presumably.  Certainly if she tells a Senate committee that she is not gay she had better be telling the truth, or she will be vulnerable to a lifetime of pressure from those in the know.

I don’t think her being gay is a problem in itself, but lying about it would be disastrous and stonewalling it seems unlikely to work.  This is tricky – does anybody want to see a panel of witnesses present their personal experiences with her, as we saw with the Anita Hill /Clarence Thomas debacle?  I really would prefer not to.

There are at least two interesting blog posts from the right that I will mention here.  One is from Cynthia Yockey at Pajamas Media, who seems to think that it is all a bunch of nonsense that is detracting from the very real issues about Kagan’s nomination.  Another is from Professor Jacobson at Legal Insurrection, noting that for all the rumblings about Kagan’s alleged orientation, she stated (in her Solicitor General questionnaire) that she does not find a constitutional right to same-sex marriage.

I think the lesbian meme is stupid.  It shouldn’t matter who the justice sleeps with, so long as they do the job they were nominated to do — uphold the Constitution in the face of those who would pervert it to serve their own needs.

The one concern I have with this nomination is Kagan’s relatively thin paper trail.  Although she has been quite visible (both as the Dean of Harvard and as Solicitor General), her published work appears lacking.  This is not necessarily a game-breaker, but it may suggest that there is more to Ms. Kagan than meets the eye.

At the very least, the next few months will be quite interesting.




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