A few thoughts.

A friend sends this email:

So, I have some friends and family that want me to start a small revolution over the nomination of Elena Kagan for Solictor General. What do you think of her?

I am sorta scared that this is definitely a prequel to the replacement of Ginsburg. I’m thinking Kagan is perhaps left of Ginsburg too?

I thought this might be right up your alley.

Thanks,

Josh

My response? No: neither Josh nor conservatives generally should oppose Elena Kagan’s nomination to be the United States’ Solicitor General.

Dean Kagan might be more leftist than Justice Ginsburg or whomever she might replace on the Court (emphasis on both mights), but being on the left (or on the right) does not disqualify someone from being the Solicitor General. To get through this current nomination, Kagan should demonstrate that she is qualified to act as the federal government’s advocate before the Supreme Court. This includes demonstrating a willingness to defend the all of the laws of the federal government, including the laws she disagrees with. She has demonstrated that ability in her nomination hearings.

Josh’s key concern isn’t Kagan’s qualification to be Solicitor General, though. Rather, Josh suspects that Kagan, the outgoing dean of Harvard Law School, is in line to take a spot on the Supreme Court when the next vacancy occurs. Several legal observers share his suspicion.

Opposing Kagan’s current nomination would continue a unfortunate, harmful D.C. pastime. The game—blocking your opponents’ potential Supreme Court nominees—goes something like this.

1. Identify rising legal stars in the opposite political or judicial camp.

2. When a president nominates these rising legal starts to “pipeline” positions that could lead to a seat on the Supreme Court, fight their nominations with every substantive complaint and procedural maneuver you can manage. (The public doesn’t pay much attention to this round of the game, so if you want to defeat nominees that would be hard to oppose in the attention-grabbing Supreme Court nomination round, this is your chance. Be sure to oppose the nominations of women and racial minorities with zeal.)

3. Don’t let your guard down when you defeat one nomination; you can’t let anyone through. That way, the president will be forced to nominate someone you like (or at least someone you like better than the nominee you defeated).

President Bush’s nominees were often the pawns in this game. Peter Keisler’s nomination was defeated this way. Miguel Estrada’s, too. (His particularly distasteful ordeal was recounted here. It’s noteworthy that he has endorsed his Kagan, his former classmate, in her nomination.) Kagan herself has been subject to this before. Her nomination by President Clinton, to the D.C. Circuit in 1999, was defeated this way.

But the nation’s judicial process is more than a game, and it does not benefit us when our judges (and those in prominent legal positions) are forced through a tit-for-tat nomination process. Qualified and interesting candidates get culled from the nomination pool (or never let themselves be considered). Lawyers who might otherwise advance legal debate silence themselves, fearful of creating a record for the opposite side to fulminate against. Blameless individuals must endure name-calling and invective that is disrespectful of them and the judicial process.

Beyond the negative effects of this game, the players in it seem to take a dim view of the president’s prerogative to nominate individuals whose views fit his own. The president, duly elected by at least 270 electors, is entitled to nominate qualified individuals whose understanding of the law and the Constitution fits his own. As we have heard many times, “elections have consequences.” Though it may be hard for electoral losers to accept, a key consequence of a loss at the ballot box is the loss of the ability to put their preferred nominees on the bench. And it’s not appropriate to do an end run around this presidential prerogative by opposing potential judicial nominees at an earlier stage.

But the electoral losers should take heart: in America, neither of the major parties is ever out of power for long. Today’s conservative minority, loud while on the outside looking in, will be tomorrow’s conservative majority. When the White House is again in Republican hands, conservatives will (rightly) talk about the president’s right to nominate the sort of judges he promised to nominate. They were talking that way just last year.

We should not be naïve: this game did not start with Obama’s inauguration. Or Bush’s or Clinton’s, for that matter. It likely will not end. Democrats will rage against Republican obstruction this term (ignoring their own obstruction, the way this blog post seems to), and Republicans will rage again in a term or two. Perpetuating the game, however, harms America and its judicial process. We should not aid and abet in that harm.

Note: This post was edited for style and for spelling errors on February 26, 2009.

California’s Proposition 8 would write the traditional definition of marriage into the state’s constitution. The outcome on November 4 will be sad, regardless of who wins.

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The marriage that Americans have known for most of their lives—with its expectations, rights, and responsibilities—is a recent innovation historically speaking. The received wisdom about marriage has changed a lot. Polygamy and exclusivity have been praised and scorned. Legal, ecclesiastical, and parental approval have been sometimes necessary, sometimes not. The ability of spouses to inherit property has shifted: sometimes with, and sometimes independent of, views on sex roles.

Considering the West’s current embrace of romantic, two-person love, and its slow but evident acceptance of same-sex romantic relationships, formal and societal recognition of same-sex marriage seems inevitable. California would do well to embrace that reality.

But California has not embraced same-sex marriage—and that is what makes the upcoming vote so problematic, regardless of the victor. Yes, the California Supreme Court directed state officials to recognize same-sex marriages, but that hardly counts as an embrace by We­–the­­­–People California. The high court’s decision was diktat, and it overturned the 2000 referendum that wrote the traditional definition into statute.

It is not concerning that the court overturned a popularly-backed statute. After all, when a court overturns any legislative statute, it is overturning a law backed by the elected representatives of the people. If we accept that courts rightfully have judicial review, we should not complain that a court might overturn a referendum’s result.

Rather, the court’s decision is concerning because it is an example of a type of law-making that is unfortunately common in America. A group with a policy goal, unable to win through the legislative process, turns to the courts. The courts, finding an implied command in the either the state or federal constitution, call the policy constitutionally required, and so immune from modification except by constitutional amendment.

We have seen this law-making by judicial diktat too many times: abortion, affirmative action, and criminal procedure each have inspired inappropriate decisions. The case of abortion is instructive. Before the U.S. Supreme Court’s Roe v. Wade decision in 1973, states were liberalizing their abortion laws. It was quite possible that abortion would become legal for a majority of Americans in short order.

Roe circumvented those legislative efforts, forcing a one-size-fits-all solution on the whole country. Whether the legalization of abortion is correct as a matter of principle is beyond the subject of this post: the effects of the legalization of abortion are lamentable. Opponents of abortion probably would have accepted political defeats in some states as the price of political victories in others. With Roe, however, they felt (justifiably) they had lost a rigged fight. Rather than simply skulking off and accepting defeat, they organized millions of their fellows, many of whom would not have participated in politics absent Roe. Now, pro-lifers fight, and angrily, for they see a judicial field stacked against them. Pro-choicers fight too, but for a legal framework that seems precarious and under siege.

Compare the American experience to the European experience. There, abortion is much closer to being a settled matter. Politically, the two sides have fought to a draw. Abortion law there is generally nuanced, avoiding the either-or propositions of the abortion partisans.

The American gay marriage debate looks much like its abortion debate, and with much the same results. In several states, proponents have won outright victories through the courts. In many more states, gay marriage is flatly banned. For progressives, it must smart that the president’s 2004 victory in Ohio is readily attributable to the Massachusetts court decision from that year: no court decision, no huge conservative turnout, no Bush.

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What is the alternative to judicially-recognized same-sex marriage? Legislatively-recognized same-sex marriage. Perhaps no same-sex marriage would exist in the U.S. today. Nonetheless, it would not be long before some states would recognize such unions; and though the acrimony would be intense for a time, the result would be more stable, because opponents would accept a fair loss (or a compromise) much more readily than losses endured at the hands of a few judges.

A victory for Proposition 8 in California next week would mean a triumph of legitimacy over chicanery. It would also be an unfortunate and offensive slap in the faces of California’s gays and lesbians. And it did not have to be this way.