Kagan confirmed

Timothy Kincaid

August 5th, 2010

From the WaPo

Elena Kagan, the former solicitor general of the United States, is now the 112th Justice of the Supreme Court. The eminently qualified former Harvard Law School dean who has never donned the judge’s robe will replace liberal jurist John Paul Stevens, who retired in June after 35 years on the bench. Because Kagan is considered a liberal, the ideological makeup of the court is not expected to change.

My gut tells me that this is good for gay issues, including marriage, but Justices have a long tradition of thwarting expectation and presumption.


August 5th, 2010

“Justices have a long tradition of thwarting expectation and presumption.”

Our most recent judicial win being a great example. However, I have the same gut feeling as you, Tim.


August 5th, 2010

why do you have that feeling? the woman wrote that there is no constitutional right to same-sex marriage. if that’s not clear, i don’t know what is.


August 6th, 2010

Because the first issue I have is with the wording: “There is no federal constitutional right to same-sex marriage.”

As a good friend of mine said, “Don’t refer to it as same-sex marriage. It’s just marriage. You’re in favor of marriage equality.”

Do I think it’s more likely she’s playing games with wording? Well, it is a habit of liberals, if you were to ask anti-Clinton-ers, but no.

I think it’s more likely what Tim said: “Justices have a long tradition of thwarting expectation and presumption.”

Further, I’d say it’s pretty obvious she’s a liberal and, at the end of the day, judges do have to actually listen to the arguments, and I think, on a judicial level, the arguments made by Judge Walker are pretty damn sound. She may hold that opinion now, but I don’t think it’ll last.

Lastly, it’s only one issue. While I’m not a single issue-er when it comes to queer issues, I think on the whole she’ll be good for gay (hopefully queer) issues in general.

Naturally, I’ll admit I might be wrong here about her…but I’m hoping I’m not (for all our sakes).

Timothy Kincaid

August 6th, 2010


While I do not have insight into Kagan’s thinking, I do think that this sentence has to be read in context. It is from her senate hearing for solicitor general.

1. As Solicitor General, you would be charged with defending the Defense of Marriage Act. That law, as you may know, was enacted by overwhelming majorities of both houses of Congress (85-14 in the Senate and 342-67 in the House) in 1996 and signed into law by President Clinton.

a. 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.

b. Have you ever expressed your opinion whether the federal Constitution should be read to confer a right to same-sex marriage? If so, please provide details.

Answer: I do not recall ever expressing an opinion on this question.

The question goes to whether Kagan would support law as it was currently held and would not act outside of the court’s decisions. This is the correct answer for someone seeking the position of solicitor general.

I don’t think it tells us whether or not she believes that individuals with a homosexual orientation are covered by the protections for “any person” in the 14th Amendment.

In other words, the quote is worth noting, but not determinative.


August 6th, 2010

Justices tend to shift liberal on the Court unless they have a strong conservative ideological structure they’re committed to defend. The nature of their duties is essentially to distinguish kinds and degrees of barbarity. Most come to a realization of how harsh the American social condition is in absolute terms and how little of it is justified by external circumstances.

I’m surprised at all the skepticism about Kagan. It’s good form for freshman Justices to be deferential and polite and moderate for a couple for years, in essence paying off a subtle debt of obligation to their political patrons who are almost always in both Parties. Kagan got five relatively moderate Republicans’ votes in her favor. Though also thirty six votes against, which frees her from any obligation to the hardcore Right.


August 6th, 2010

I don’t particularly care for her first amendment views, among other things.

Priya Lynn

August 6th, 2010

I don’t know why you’re surprised CD, she basically said that if an equal marriage case came before her she’d rule against equal marriage. I’m surprised anyone thinks that’s no problem.

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