Category Archives: Law

One of the criticisms being hurled at Elena Kagan from the right is that she might be a lesbian. This concerns me.

Not the lesbian part; few things are less important to one’s judicial qualifications. My worry is that Republicans have so atrophied intellectually that this is their loudest reason for opposing her.

A thoughtful soul (I forget who) recently remarked that twenty years from now, almost everyone currently on the wrong side of gay rights issues will be embarrassed to admit it. Yet the obsolete epithets being hurled at Kagan — which may or may not be accurate, and frankly, who cares — are what many of Kagan’s opponents seem to care about the most.

And people wonder why I often take visible offense when someone tries to call me a conservative.

There are substantive reasons to be skeptical about Kagan. One of them is how she views the executive branch. “She is certainly a fan of presidential power,” one scholar remarks. This is important.

Chief Justice Roberts has similar views. He was picked in part because the Bush administration knew he wouldn’t strike down that administration’s more controversial power grabs. Harriet Miers was not rejected for her views, which are utterly conventional. Her nomination was only struck down because her lack of subtlety in expressing those views was considered gauche.

While I have never been an Obama fan, one of my hopes for his administration was that he would repudiate Bush-era excesses such as the PATRIOT Act. He embraced them instead. Having all those cool powers at his disposal was just too much to pass up.

President Obama’s Supreme Court nominees so far seem no different from Roberts or Miers: what the other branches of government want, they shall get. The exceptions, such as the Citizens United decision, are so rare that they garner weeks worth of headlines; such outbursts must be kept to a minimum. Hence Kagan.

What the Supreme Court needs is a healthy dose of judicial activism. Kagan, like Roberts, Sotomayor, and other recent nominees, is a judicial passivist. They reflexively defer to the executive and legislature, right or wrong.

What we need are Justices who will stand up and say “no” when Congress passes a law that is unconstitutional, or when the president abuses his powers. That’s why judicial review exists in the first place. This tradition goes all the way back to Marbury v. Madison, often the very first case that students read in undergraduate constitutional law classes.

As Kagan goes through the pomp and circumstance of the confirmation process, maybe she’ll prove better than her likely soon-to-be colleagues. Maybe she won’t. But so long as her Republican opponents are fixated on something so trivial as her sexual orientation, we may never find out. Given her relative youth, three decades or more of jurisprudence are at stake.