Elena Kagan’s nomination to be S.G.

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.

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 262009.

California’s lose-​​lose Proposition 8

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.

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.

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.

For an excel­lent explo­ration of the con­stantly chang­ing role of mar­riage, read Stephanie Coontz’s Marriage, a History (Penguin 2005). Though she def­i­nitely comes out in favor of the “love match,” and betrays dis­taste for tra­di­tion­al­ists what­ever the cen­tury, her treat­ment of marriage’s his­tory is gen­er­ally fair and readable.