Monday, May 17, 2010

Republicans Should Stick to Their Guns on Kagan

By Mike Dorf

Writing in Sunday’s NY Times, both Frank Rich and Maureen Dowd called attention to the fact that the social conservative line of attack against Elena Kagan is increasingly looking like a thinly veiled campaign of innuendo to the effect that Kagan is a lesbian.  As Dowd’s column (which takes the form of a parody of a recent email blast from Joe Biden) suggests, the right is being abetted in this endeavor by the adamant denials of the Administration and others.  (Memo to file: When seeking to defuse a political issue even remotely involving sex, do not enlist Eliot Spitzer as a character witness; if he offers to help, say he can be most useful talking about financial matters.)

To be clear, for broad public consumption, social conservatives have not been openly saying either that 1) Kagan is gay; or that if so, 2) that disqualifies her from serving on the Court.  Instead, the focus has nominally been on Kagan's constitutional views, especially regarding the Solomon Amendment and Don't Ask, Don't Tell.  Yet as Rich notes, as Harvard Law School dean, Kagan was not especially outspoken against the Solomon Amendment.  True, she signed the Harvard faculty amicus brief, but that didn't distinguish her from the following people now serving or who have recently served in the federal government: David Barron, Jody Freeman, Dan Meltzer, Larry Tribe, and Liz Warren.  David Shapiro also signed, and he served in the SG's office in the Reagan Administration.  It's hard to imagine that so much attention would be focused on the signing of this brief were one of these other people nominated.

Part of what's going on here may be a reaction to Kagan's frustratingly opaque paper trail.  For a constitutional scholar, Kagan has said remarkably little about the hot-button issues that typically exercise political activists come confirmation time: abortion, affirmative action, gay rights, etc.  Does that mean that Kagan has been cagey?  Not necessarily.  As a scholar, her early work focused on the First Amendment, about which we have something of a cross-ideological consensus.  After her stint in the Clinton Administration, her main scholarly interest was on the "structural" side of con law rather than the rights side, and then she became dean.  Accordingly, it may not be fair to say that Kagan was deliberately avoiding hot-button issues.  However, fair or not, one can get that impression from the topics not addressed in her writing.    After all, the L.A. Times had to cite a piece Kagan wrote for her college newspaper nearly 30 years ago to derive clues about her present views on abortion.  Accordingly, social conservatives may conclude, if she's being cagey about her views on constitutional law, perhaps she's being cagey about her sexual orientation as well.

Although I'm not in the habit of giving political advice to social conservatives, I'll take a crack at it here anyway: Drop this line.  Maybe, just maybe, you can get away with asking the following question during the confirmation hearing:
General Kagan, when you were here last year, you said, "There is no federal constitutional right to same-sex marriage."  How exactly did you mean that answer?  Did you mean it as a report of the existing case law?  Or did you mean that the Supreme Court should not recognize a new right to same-sex marriage?
But after Kagan gives the predictable non-answer answer (as anyone seeking to win confirmation would), the Republicans should drop the issue.  The more Kagan is asked about same-sex marriage and don't ask-don't-tell, the more Republicans risk appearing to be trying to out her.

Which brings me to the title of this post.  The hearings will occur in the aftermath of the Supreme Court's pending decision in McDonald v. Chicago, in which the Court will very likely find that the Second Amendment right to possess firearms limits states and localities, not just the federal government.  I did a WestLaw search of scholarly articles by Kagan that discuss the Second Amendment and came up with nothing.  Kagan only mentions it once--in discussing how then-Judge Ruth Bader Ginsburg avoided answering a question about the Second Amendment at her own confirmation hearing--but never discusses her own view of it.  When she was up for confirmation as SG, Kagan declined to say whether she agreed or disagreed with Heller, stating that as SG, her personal view of the matter would not be relevant.  If, as I expect, McDonald leaves open a range of questions about what sorts of state and local gun regulations are valid, Kagan could fruitfully be asked questions about how she might go about filling in those blanks.

Of course, Kagan will evade such questions with what she aptly described as a "pincer movement," (again, as would anyone who wanted to be confirmed).  But at least in asking questions about guns, her interlocutors will not out themselves as bigots.


egarber said...

I almost think the WH is inviting a little bit of gay bashing. Sure, that would fire up the cultural base on the right in the short term, but over the long haul it would further alienate yet another group, not to mention independent voters. I'm pretty sure Hispanics are now a lost cause.

GabSoFab said...

I'm not sure what the previous comment about Hispanics now being a "lost cause" means (past voting results prove that Hispanics cannot be easily counted in or out of any issue, including immigration), but like Dorf, I too am less interested in the "sexual orientation issue" than in the paper trail issue. What I mean is, how concerned should we be that Kagan has not opined at all about, among other things, the 2nd Amendment when she will inevitably be confronted by that very issue on the Sup. Ct. bench? I'm concerned about her opinions, not whom she's living with or loving!

egarber said...


I wasn't insinuating that hispanics are monolithic.

What I meant is that it's going to be very tough over the long haul for Republicans if they can't win *more* hispanics than the current clip.

According to Pew, they voted for Obama 67-31 over McCain. And I'm comfortable saying Republicans could lose another 5% or more in the aftermath of the new Arizona law. Or in other words, given the country's demographic changes, Republicans can't afford to be doing things that cause further loss in this area.

(sorry to have taken the thread off topic).

michael a. livingston said...

All right, just to liven the discussion a bit:

One of the arguments for appointing women and minorities to judicial or teaching positions is that they serve as "role models" for aspiring members of the group. This being the case, if one is on principle opposed to homosexuality, what is wrong with saying, "I think that a heterosexual woman with children would be a better role model than one who is gay or childless?" How is this different, in principle, from saying, "I know that Clarence Thomas is African-American, or Antonin Scalia is Italian, but these aren't the kinds of Blacks or Italians I want on the Court."

A mere hypothetical, I should add, since (i) Kagan isn't gay (or so it would appear), and (ii) I don't personally think that gay people are better or wore role models than anyone else; but if one did feel this way, why exactly is it an illegitimate argument?

Michael C. Dorf said...


The problem is in the setup: It's morally odious to be "on principle opposed to homosexuality."

I think your invocation of Justice Thomas conflates two different justifications for racial/gender/ethnic diversity. I think there is something to the role-model idea and so I am grateful to Justice Thomas for the active interest he takes in encouraging young African Americans to aim high, by speaking to high school groups, for example. I doubt that many left/liberal African Americans object to that. What I sometimes hear is a different point--that Thomas is not representative of the views of most African Americans, which is clearly true (at least insofar as Americans of any race have constitutional views distinct from political views). But saying he's not representative doesn't mean he can't be a good role model. One can then argue about whether diversity as representativeness (think, a different voice) has a role in judicial appts.

michael a. livingston said...

I'm not sure where the concept of "moral odiousness" comes from or what its role is in the debate on the Court. I don't think that a majority of the country feels that it is "morally odious" to take a position in defense of traditional moral values or who has authority to make this determination. One can disagree on this point, but I don't think a case has been made as to why this particular argument is more or less acceptable than other arguments.

Michael C. Dorf said...

Michael, I hadn't figured you for a moral relativist; yet you appear to assume that a moral proposition (such as "opposition to homosexuality is morally odious") cannot be true if a majority disagrees with it. Surely you wouldn't say that abolitionists were not entitled to say that slavery was morally odious simply because large numbers of people thought otherwise.

As for what this has to do with debate about the Court, you posed the question whether someone who holds views that I regard as bigoted is entitled to object to a judicial nominee on the grounds of her prejudice. I answered that such objections should be rejected. Now, if your question is whether--from the perspective of the bigot--it's permissible to raise the objection, well, I suppose the answer is yes, but I can't see why I should much care about the bigot's perspective.

Once we dispose of public opinion as the guide for evaluating our moral judgments--as we must if we are not moral relativists--then what ground might we have for thinking that being "opposed to homosexuality" ought to count as anything other than bigotry? You associate this view with "traditional morality," but of course "traditional morality" can as easily be invoked to justify slavery, child-marriage, patriarchy, and many other practices that I suspect you would be ready to join me in condemning.

Given that you do not share the view that homosexuality warrants disapproval, I do not understand your commitment to defending its disapproval by others as principled.

michael a. livingston said...

I think my problem relates less to this specific issue than to the whole nature of discourse on constitutional issues, of which this is implicitly a part There seems to be a sort of intermediate discourse which jumps back and forth between the actual law [which more or less delegates the choice of justices to a political process and hence public opinion] and the personal/political views of those engaged in the discussion [which identify certain arguments as acceptable and others as not so without a clear foundation]. The long and short of it is that, while I don't see an individual's personal life as especially relevant to the process, I don't feel comfortable dismissing as "bigoted" people who hold a different view, particularly when their critics seem to find personal factors that they like relevant and permissible. As for the last point we defend people's right to make arguments we disagree with all the time: what's exceptional about that?

Michael C. Dorf said...

I'm not denying anybody's right to disapprove of homosexuality or to express that viewpoint publicly, in the same way that I would not deny anyone's right to express disapproval of interracial marriage. However, if someone said in 1991 that Clarence Thomas shouldn't be on the Supreme Court because his wife is white and he would be a bad role model insofar as he thereby encouraged interracial marriage, I assume you would have joined me in saying that this "argument" should be rejected because it is based on a base prejudice. I feel the same way today about "arguments" against legitimizing homosexuality.