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.