Patterico's Pontifications

5/10/2010

Kagan: Forming a Majority Against a Constitutional Right to Same-Sex Marriage?

Filed under: Constitutional Law,Judiciary — Patterico @ 6:25 am

William Jacobson notes that Elena Kagan has declared: “There is no federal constitutional right to same-sex marriage.” That is, if she was telling the truth when she answered a questionnaire from Sen. John Cornyn (p. 28 at this .pdf link) during her confirmation process to become Solicitor General:

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.

Prof. Jacobson notes: “Reasonably assuming the four conservative judges share Kagan’s view, there now will be a definite majority on the Court against recognizing a constitutional right to gay marriage.” This is relevant because that case started by David Boies and Ted Olson will be percolating its way through the system towards the Supreme Court at some point.

I pretty firmly believe that Justice Kennedy would also be a vote against putting gay marriage in the Constitution, which I think he would see as a step too far. But you never know for sure. If Kennedy decided to find this right among those encompassed by what Justice Scalia has called the “famed sweet-mystery-of-life passage,” then Kagan would be a fifth vote against him.

If she told the truth.

73 Responses to “Kagan: Forming a Majority Against a Constitutional Right to Same-Sex Marriage?”

  1. Her answer was carefully worded. There is no right (under current Supreme Court jurisprudence). But that doesn’t mean it can’t be created once she is on the Court.

    JohnD (73e04d)

  2. I think Kagan is clearly qualified to serve (if selected), so I hope the Republicans don’t make asses of themselves. (See: Democrats speechifying about John Roberts.)

    The weird thing the WH is going to have to get around are their strident denials that Kagan is gay. It’s my understanding that it’s not exactly a secret (I think Julian Sanchez, among others, has noted this; this isn’t just serial plagiarist Ben Domenech); if that’s correct, the denials were stupid and counterproductive.

    But anyway, I think Kagan’s a fine choice, given the potential pool.

    –JRM

    JRM (65bbfb)

  3. I said something like this in Jacobson’s thread, but I was cackling laughter when i heard it. She’s about as good was we could hope for. she is probably a little to the right of stevens, and she stinks out loud as an advocate.

    As for the gay marraige thing, it isn’t even a matter of truth. You forget that to many liberals the constitution isn’t a document written first in 1789, and amended subsequently. it is really whatever the Supreme Court says it is. So that promise probably means very little.

    But i think the possibility that she is gay might actually work against gay marraige. If gay marraige is ever found to be a constitutional right, I would be really surprised if a gay person would be willing to be the fifth vote for it. then everyone would say that she did it just because she was gay.

    indeed, it might prevent her from being a 6th or seventh vote. remember bias creats problems for both sides. for instance, suppose you as a prosecutor, Patterico, learn that the defendant is best friends with the judge. Well, you would have standing to say the judge should step aside, but so would the defendant. the defendant could say, “if he is the judge, he will be extra hard on me, just to prove he is not biased, and that will be unfair to me.” So in a weird way, i think the bias kagan might have, if she is in fact gay, might cut agaisnt gay marriage and not in favor of it.

    And, btw, do we have a final word on whether she is gay?

    A.W. (e7d72e)

  4. She has been strident about “Don’t ask, don’t tell including barring military recruiters and mischaracterizing the Solomon amendment” so I would not put a lot of money on her opposition to gay marriage.

    Mike K (2cf494)

  5. I think that you have forgotten how Justices are supposed to “grow” in office. :(

    The cynical Dana (3e4784)

  6. That depends on what the meaning of “is” is.

    Kevin Murphy (5ae73e)

  7. Same sex marriage is the least we have to worry about. Who cares? If same sex marriage was made legal across the whole country, there might be about 100,000 of them. 80,000 between women.

    What we need to worry about is the Constitutional right to have your neighbor buy your groceries and make your mortgage and car payment for you.

    nk (db4a41)

  8. If a conservative said and did the exact same things as she has, they would be labeled a homophobe.

    JD (5e5cad)

  9. JohnD: it’s not even that; the problem here is that Sen. Cornyn asked the wrong question.

    Virtually no judicial liberal would say there is a constitutional right to same sex marriage; that’s how conservatives describe the issue. Liberals would say there is a constitutional right to marriage, and there is a constitutional right to not be discriminated against in the exercise of that right.

    The question Sen. Cornyn should have asked is: do you believe that discrimination on the basis of sexual orientation is subject to heightened scrutiny?

    aphrael (73ebe9)

  10. Jim and Joe meet on the street. Jim says to Joe, “I say, did you hear the news about Billy?”

    “No” says Joe, “what’s up will Billy?”

    “Well” says Jim, “Billy has taken up with an Orangutan.”

    Joe sputters. Stunned, he mutters, “An Orangutan? did you say an Orangutan? Good lord, male or female?”

    Jim fixes him with a stare and says, “Why female, of course, there’s nothing odd about ol’ Billy.”

    ropelight (a91bd1)

  11. Same sex marriage is the least we have to worry about. Who cares? If same sex marriage was made legal across the whole country, there might be about 100,000 of them. 80,000 between women.

    What we need to worry about is the Constitutional right to have your neighbor buy your groceries and make your mortgage and car payment for you.

    The thing is, the sort of judges who like to make the right to the gay marriage are also prone to making things like the right to government health care.

    Subotai (347c23)

  12. Virtually no judicial liberal would say there is a constitutional right to same sex marriage; that’s how conservatives describe the issue.

    How very Clintonesque.

    Subotai (347c23)

  13. Crony with zero experience, or associate with flawless judicial record.

    Just depends on how you say it.

    Fact is, this is an insulting nomination. The gambit is that she is more moderate than whoever Obama would pick if he didn’t pick her. I think you have to be gullible to buy that Kagan was hiding her moderate views all these years, and really, she should have some experience.

    She would make a good district level nomination.

    Dustin (b54cdc)

  14. On the other thread, elissa pointed out how many of FDR’s nominations were based purely on political views and not on judicial experience. She skipped Hugo Black, BTW. (I know, I know, he did serve some time on traffic court.)

    nk (db4a41)

  15. I think Kagan is clearly qualified to serve (if selected), so I hope the Republicans don’t make asses of themselves. (See: Democrats speechifying about John Roberts.)

    Until Bork, and ever afterwards, it was accepted that if a person was well-qualified to sit on the Court, was not a crook, and did not have ideas that were utterly radical, the President’s choice should be given deference and approve the nomination. For example, Ruth Bader Ginsburg was clearly on the liberal end of things, but also clearly qualified to by her resume to sit on the Court. And she was approved overwhelmingly by a Republican Congress, most of whom would have preferred someone more conservative.

    However, when Roberts was nominated, the Democrats, including one Senator Barack Obama, rejected this standard, and voted against him on ideological grounds. Then Senator Obama made no bones about this. He stated on the Senate floor that Robterts was eminently qualified, but he was voting against him anyway for his supposed lack of values and empathy.

    Sorry, but Obama does not get the benefit of deference he refused to give to his predecessor. If I were a Senator, I would vote against this nominee on the same grounds: yes, she is eminently qualified, but it is clear that her ideology and philosophy of Constitutional interpretation are vastly different from mine. 20 years ago I would have deferred to the President’s choice. Not today.

    Bored Lawyer (c8f13b)

  16. She will get 87 votes.

    nk (db4a41)

  17. 11.Same sex marriage is the least we have to worry about. Who cares? If same sex marriage was made legal across the whole country, there might be about 100,000 of them. 80,000 between women.
    What we need to worry about is the Constitutional right to have your neighbor buy your groceries and make your mortgage and car payment for you
    – Comment by nk

    I’m worried that my child’s Constitutional Right to freedom of religious belief and speech will disappear, and that my suitability to parent my child will be put into question because of my “radical” views that go against the new law of the land.

    While the analogy may or may not be appropriate, we know that many frame this debate as the same as civil rights based on race. We all know how “tolerant” society is of white supremicists (with good reason, I might add). If the analogy is held to be valid in the public square, I imagine the analogous reaction to those who disagree with the concept of the equivalence of same-sex partners will be the public norm soon after, at least in some places.

    If someone can give me reasons why this is not a likely scenario I am happy to hear them.

    I feel the govt has no reason to trt the individual gay person any different from the individual straight person in the general society. But will the law say, “Marriage can be between same sex partners just as opposite sex partners, and those who have religious or other “deeply held” reasons to disagree have the right to maintain their belief without prejudice”?

    MD in Philly (ea3785)

  18. the republicans won’t block her. if they didn’t block a racist latina, they ain’t gonna block anyone as long as she can tie her shoes.

    But cheer up. Kagan will be one vote. she is probably more conservative than stevens, because it is hard not to be, and if she is gay, she won’t dare be the fifth vote for gay marriage.

    A.W. (e7d72e)

  19. she should have some experience.

    Dustin: Experience doing what? Are you under the impression she’s been sitting at home all these years? She was dean of Harvard Law and is the current solicitor general, who has argued cases before the Supreme Court.

    I hope you’re not one of those who has been snowed into thinking a SC judge must come from the appellate level or must have worn a robe at some point?

    As for her prospects: In the old days, when — as Bored Lawyer notes — Republicans refrained from playing the same partisan games as Democrats do with SC nominees, Kagen would have gotten 85+ votes for confirm.

    In an election year defined by Tea Party extremists, and with the GOP showing with Sotomayor they’ll be just as petty as the other party, I say she gets 65 or thereabouts, after all the theater has played out.

    Myron (6a93dd)

  20. And I meant “Kagan.”

    Myron (6a93dd)

  21. Kagan is a pretty lackluster appointee, which really matches my opinion of Obama’s appointments overall between appellate judges ( like the truly incompetent and dishonest Goodwin Liu ) and cabinet members.

    SPQR (26be8b)

  22. Subotai: the point isn’t to be Clintonesque; the point is to recognize that the left and the right understand an issue in different ways, and that asking someone what they think using your framing rather than their framing may not get you the answer you are interested in, especially if you think they have an incentive to parse words carefully.

    aphrael (e0cdc9)

  23. Re: Same Sex “marriage”
    Marriage can only exist between an unmarried man (XY) and an unmarried woman (XX). Anything else is like saddling up a Hampshire and pretending it is a Shetland.

    quasimodo (4af144)

  24. When Alexander the Great conquered the Persian Empire, he found it convenient and even necessary to be thought of as a god in some of his new lands such as Egypt. So he sent mesengers to the Greek city-states, proclaiming that he was now a god. Most of the Greeks were scandalized. Hubris and blasphemy. Except the Spartans. They answered back, “If Alexander wants to be a god let him be a god”.

    If homosexuals want to call themselves married, let them call themselves married.

    nk (db4a41)

  25. We have much bigger battles to fight.

    nk (db4a41)

  26. Do we? If terrorists want to call themselves jihadis, the Department of Justice simply will not permit anyone employed in the federal government to call them either terrorists, or jihadis.

    There are limits to free speech, and you damn well better get used to it, citizen.

    ropelight (a91bd1)

  27. That’s what I said, ropelight. Leave the damn queers alone and let’s take care of our country’s important business.

    nk (db4a41)

  28. Knowing the vetting skills of this administration, I would not be surprised that there are surprises yet to come regarding Ms.Kagan.
    She has no judicial record, and she is virtually unpublished in her academic career.
    Plus, how many of the cases that she argued as SG was she on the prevailing side?

    AD - RtR/OS! (321c7a)

  29. Hariet Meyers from the Democrat persuasion.

    PCD (1d8b6d)

  30. #28, why should that matter AD? I understand Kagan never argued an SC case before she was appointed SG.

    It might be reasonable to conclude that her 2 main qualifications for any Obama nomination is that she can pass for female, and she’s a reliable left-wing megaphone.

    #29, yep, PCD, Kagan is an unqualified crony alright. Funny how Obama keeps resurrecting GWB’s mistakes. We got a truly stupid man in the White House. Meyers must be ROTFLHAO.

    ropelight (a91bd1)

  31. NK

    if gays want to get married, they can gain the right at the ballot box, not by judicial fiat.

    judicial activism is the piecemeil destruction of democracy.

    A.W. (e7d72e)

  32. A woman who opposed don’t ask don’t tell and told military recruiters to skedaddle from Harvard despite the Solomon Amendment, will not be the fifth vote against gay marriage but would well be the fifth vote for it, if, God forbid, she were confirmed. She is a liberal, and was head of one of the most liberal law schools, and hence she would lie for self advancement, is self evident. Unless she produces all of her government opinion memos she should be rejected.

    eaglewingz08 (1e4d33)

  33. I hope you’re not one of those who has been snowed into thinking a SC judge must come from the appellate level or must have worn a robe at some point?

    Uh, yes, this is truly an offensive view for me to hold, now that Obama needs it to be, right? I’m some kind of wing nut psychopath for thinking that a position at the top of a political branch with a lifetime appointment, whose primary job is oversight of other judges, should have worn a robe at some point.

    This is now politically incorrect? Funny how common sense often becomes politically incorrect.

    I explained exactly why I feel this way before you moaned that you hope I don’t, so I guess you’re preening for no reason. She’s a crony, like Miers, and I oppose her for the same reason.

    As an academic, she’s an abject failure who has failed to produce anything helpful to her field. I don’t mind if judges have some background outside the law or judging… that’s great, but indeed the people in charge of all appeals need to have been judges to understand the process. The only Amicus I know Kagan signed onto failed 8-0 because she’s incredibly radical the one or two times she has failed to completely hide her views.

    Just another nutjob crony from Chicago. They all seem to really believe in eachother without any good reasons.

    Since Obama opposed Roberts, even voted to filibuster him, if I recall correctly, I don’t really care what the leftist spin is. This is an abomination of a nomination and I hope it is opposed. I think it can fail if we effectively fight it. For the simple sake of having faith in the administration of justice, we shouldn’t put idiot cronies on the Court just because they are young and loyal.

    so sorry for my extremism.

    Dustin (b54cdc)

  34. You have to be careful when asking a lawyer what the constitution says. They could give the following responses:
    1) Taking into account the past rulings and the current state of the law, the answer is ‘A’.
    2) Based on the politics and legal leanings of the current court, they will rule that the answer is ‘B’.
    3) Based on what I believe the constitution really means, the answer is ‘C’.

    I’m sure there are some I’m missing. But, I doubt when she gave her answer she was in the number 3 mode. More likely #2, possibly #1.

    Anon Y. Mous (5ac901)

  35. Harriet Myers had a more impressive career as a private lawyer than Kagan.

    Kagan is probably the weakest nominee to the Supreme Court in terms of relevant experience in my lifetime.

    SPQR (26be8b)

  36. 24. Comment by nk

    If homosexuals want to call themselves married, let them call themselves married. – agreed

    When Alexander the Great conquered the Persian Empire, he found it convenient and even necessary to be thought of as a god in some of his new lands such as Egypt. So he sent mesengers to the Greek city-states, proclaiming that he was now a god. Most of the Greeks were scandalized. Hubris and blasphemy. Except the Spartans. They answered back, “If Alexander wants to be a god let him be a god”.

    The question I have is what would the Spartans do if Alexander’s messengers said, “And since He is a God, you must worship him and bring sacrificial offerings”. So it was no longer just a matter of Alexander flattering himself, but something that demanded a response from them that they did not like.

    The issue is not what they want to call it and believe it to be, but what they want me to call it and believe it to be.

    I don’t remember seeing any conservatives making an issue about this until the gay lobby made it an issue. At least for many promoting the concept, it is not enough to have an equivalent legal status recognized, but to have “marriage” of a homosexual couple seen as the equivalent (essentially the same- legally, socially, ethically, and morally) of the marriage of a heterosexual couple and “just as normative”.

    And while I would not decide to make this a major issue myself, I find it disturbing that what was unthinkable for the vast majority of people even 10 years ago (“homosexual marriage” is as normative as heterosexual marriage) is now on the verge of “being accepted by society” even though the majority do not agree with the premise.

    Have people in the past been harassed because of their sexual preference? Absolutely and it still happens today. Should that kind of harrassment be tolerated? Not at all, just like a lot of other cruelties between people should not be tolerated. But there is a significant difference between being asked to “tolerate” someone who believes differently than you and to expect “affirmation” of a viewpoint one does not agree with.

    MD in Philly (ea3785)

  37. Supporters seem to hope Kagan will influence Kennedy but it may be the other way around.

    DRJ (d43dcd)

  38. Dustin, dustin…

    What are you talking about?

    Look if we only hired qualified persons for higher office, then we would be talking about the nominations of a President McCain.

    Hiring academics who are unqualified to operate in the real world and fill their diversity quotas is the defining characteristic of this administration. Why would you expect that to suddenly change?

    A.W. (e7d72e)

  39. It’s fascinating reading about 39 years ago.

    It was that long since the last time someone, Nixon (a real jackass), made a nomination to the Court with no judicial experience. That year, the men’s room at the US Capitol Exploded. Bill Ayers, of course. Manson is convicted, but his California death penalty is commuted, of course, the next year. Europe suffers a financial crisis and we make major strides in our relationship with China, which we would need to fund Nixon’s grandiose policies. We announce our withdrawal timetable for Vietnam, and the US dollar actually deflates.

    A bright point: the WTC 2 becomes the tallest building on the planet

    We’re really coming full circle. but there’s a reason only the most craven and disrespectful and arrogant presidents ever insult this nation with nominations to the Court with no experience.

    Why do that? We have many people who have the experience, but of course, you can’t possibly pick an experienced and well known radical. You can pick a radical you’ve known all your career who has been strangely unproductive and quiet.

    Dustin (b54cdc)

  40. DRJ

    I expect her to influence kennedy. for instance, in citizens united, her arguments in favor of government control over political speech so horrified him that he stampeded straight toward freedom of expression. i expect her influence to have similarly positive results on the Supreme Court.

    seriously, she stinks out loud. That is why i love this choice. she will push the court rightward, in revulsion.

    A.W. (e7d72e)

  41. Comment by A.W. — 5/10/2010 @ 2:35 pm

    No! We would be talking about the nominations of President Romney.

    AD - RtR/OS! (321c7a)

  42. AD

    Romney?

    Then we would be talking about Romney care, only the republicans would own the issue, too. yike.

    A.W. (e7d72e)

  43. Hiring academics who are unqualified to operate in the real world and fill their diversity quotas is the defining characteristic of this administration. Why would you expect that to suddenly change?

    Comment by A.W

    Because I’m naive, of course.

    I wonder about DRJ’s question. I suspect the rest of the Court will look down on Kagan’s background. Indeed, she’s often gotten flack for the obvious lack of credentials and the cronyism that got her to tenure, to Dean, and now this.

    But I just don’t know. I know the reason Obama did not pick someone with experience is that experience makes it too hard to hide a radical POV.

    Dustin (b54cdc)

  44. AD

    i mean if we wanted to go back to the presidential nomination process, i would much rather have had a president Guiliani. he had alot more administrative experience, and i liked his position on killing terrorists.

    A.W. (e7d72e)

  45. Dustin

    > I wonder about DRJ’s question. I suspect the rest of the Court will look down on Kagan’s background.

    Well, to be very blunt, most lawyers don’t rely very much on their pedigree at all. A lawyer doesn’t win a case by going, “hey, i went to Yale.” i mean, i tried it, it doesn’t work. seriously the appeal to authority doesn’t get people very far. if she is right, she is right, whatever her background is.

    i mean i wish you were right. i want her to be as unpersuasive as possible, but that’s not how it is, imho.

    A.W. (e7d72e)

  46. I’m still amazed that Hillary Nobody Clinton was the Democrat choice with experience and gravitas. Amazing.

    And having so recently considered Nixon’s progressive streak, I can’t help but think about how that may have resembled a Mccain administration.

    I know that our nation was on an unsustainable path long before Obama kicked into insano overdrive. Perhaps this is how we finally come around and turn this society around, and Mccain just wasn’t meant to be.

    Dustin (b54cdc)

  47. “i mean i wish you were right. i want her to be as unpersuasive as possible, but that’s not how it is, imho.

    Comment by A.W.”

    I agree… a smart lawyer from UH comes across as much more impressive than a dullard from Georgetown in my circle.

    But perhaps when it’s time to discuss an actual example of judging, it will be harder for Kagan to compel Kennedy to her side.

    OK, I guess you’re right, and it’s just a strict idea meritocracy, but even on that basis, it’s clear to me she simply lacks the background to build coalitions and understand this topic. Even as an academic, she needed political favors to build her career, since she simply failed to get published much.

    Remember the last jurist who was famously unable to get large majority opinions. All these split decisions and complications in the law arising from them… that’s why Roberts was hoped to remedy. Of course, I’m referring to Rehnquist, the last Justice with no experience. He was a smart man who had a hard time winning allies, in my opinion.

    Dustin (b54cdc)

  48. Kagan has no record to judge her on. But Obama wouldn’t nominate her if he was unsure of her stand on a myriad of issues, including the constitutionality of ObamaCare.

    GeneralMalaise (1a238d)

  49. Comparing Kagan to Miers is absurd. Kagan’s publications have been repeatedly cited and are well-respected. Miers was thoroughly unqualified; Kagan’s terrificly qualified.

    Yeah, I’d like to clone John Roberts a few times, too, but if you want to say that Kagan doesn’t have the intellectual capacity reflected in her resume, you don’t know what you’re talking about. To compare her to Miers is patently ridiculous; Miers was an obscenely terrible choice.

    –JRM

    JRM (65bbfb)

  50. JRM, Kagan’s publications are repeatedly cited and well-respected? That’s a rather bizarre exaggeration. Kagan has nothing to brag over Harriet Miers on, and that’s not a defense of Miers.

    SPQR (26be8b)

  51. truth matters. to use “marriage” in that fashion is a lie. the SC will enshrine a lie into law. enshrining lies is always bad

    quasimodo (838f06)

  52. Virtually no judicial liberal would say there is a constitutional right to same sex marriage; that’s how conservatives describe the issue. Liberals would say there is a constitutional right to marriage, and there is a constitutional right to not be discriminated against in the exercise of that right.

    The problem is that the Loving analogy fails because gender discrimination had never been held to the same level of scrutiny as racial discrimination.

    The Supreme Court held in Minor v. Happersett that there was no Fourteenth Amendment protection against gender discrimination in suffrage law.

    In Rostker v. Goldberg, the Supreme Court upheld a law that required men, but not women, to register for a possible draft.

    In Michael M. v. Superior Court, the Supreme Court upheld a law that effectively punished underage boys for having sex with underage girls, but not underage girls for having sex with underage boys. This last case is especially relevant to the issue, as the Court stated that “only wiomen may become pregnant, and they suffer disproportionately the profound physical, emotional, and psychological consequences of sexual activity”.

    And of course, there is Baker v. Nelson, a dismissal of an appeal that claimed that denial of marriage licenses to same-sex couples violate the due process and equal protection clauses of the 14th Amendment.

    The precedent seems to be stacked one way.

    Secret Squirrel (249c90)

  53. I expect her to influence kennedy. for instance, in citizens united, her arguments in favor of government control over political speech so horrified him that he stampeded straight toward freedom of expression. i expect her influence to have similarly positive results on the Supreme Court.

    A.W., I find it amusing that she’s advertised to be persuasive, and could sway Kennedy’s vote, for the very same reason.

    Not merely the fact she couldn’t win the Citizen’s United case for the government. It was the fact that she made fundamental errors in the process that the justices, including Kennedy, interrupted her to point out.

    You can read the transcript at Hot Air here:

    http://hotair.com/archives/2010/05/10/when-elena-met-antonin-and-anthony/

    Here’s Ed Morrissey’s summation of her performance:

    In fact, the crux of the case was the issue of limiting expenditures as an expression of political speech, not contributions. Kagan started off her argument by misconstruing the issue and then offering a factually incorrect reading of precedent. Both Scalia and Kennedy objected to it before Kagan even had time to get the argument completed, although as the transcript notes, she didn’t pay much attention to them.

    Citizens United was the first case she argued before the USSC. And we all know what they say about first impressions.

    Steve (9a21f4)

  54. JRM, she’s terrifically qualified?

    To be a Supreme Court Justice? She’s never ruled on a case. She has absolutely no judicial record.

    She was dean of a school for a very short while. And when there, she didn’t do anything but cause trouble. They spin that she built coalitions, but it’s a load of hooey. Her academic record is just terrible and people were surprised she was given tenure at all. It was a political favor.

    You say her writings are excellent. Which of her writings is the most cited? I’ve read her entire body of work and it’s banal rubbish of no significance. Prove me wrong: what’s her best published legal article? Why is it impressive?

    She’s liberal. That’s the only different between she and Miers. As I said, her amicus was unanimously disagreed with. The only times she ever sticks her neck out, such as with military recruiters, she went against constitutional law.

    Insisting she’s super awesome qualified, when it’s been 4 decades since someone as unqualified was suggested, is stupid. I get that elections have consequences. Obama won and this is part of what that means. Doesn’t change the fact that the Democrats are failing to do a good job, yet again, in simple and obvious ways.

    Dustin (b54cdc)

  55. Secret Squirrel: when California’s Supreme Court said the state constitution required recognition of same-sex marriage, it first said that discrimination on the basis of sexual orientation is subject to strict scrutiny under the California constitution.

    The US Supreme Court has very carefully refrained from answering that question – none of the relevant cases from the last 20 years address it.

    Which is, of course, why I think it’s the right question for a conservative to ask a liberal judicial candidate.

    aphrael (73ebe9)

  56. Secret Squirrel: when California’s Supreme Court said the state constitution required recognition of same-sex marriage, it first said that discrimination on the basis of sexual orientation is subject to strict scrutiny under the California constitution.

    The US Supreme Court has very carefully refrained from answering that question – none of the relevant cases from the last 20 years address it.

    That is because the U.S. Supreme Court does not rule on the levels of scrutiny under state constitutions.

    The court cases that I cited ( Minor, Goldberg, and Michael M. ), all dealt with gender discrimination, and they all concluded that gender discrimination is held to a lower level of scrutiny than racial discrimination.

    Few people would argue that it would be constitutional to deny the right to vote on the basis of race, or to require registration for a possible draft on the basis of race, or to prohibit underage black people from having sex with underage white people, but not underage white people from having sex with underage black people.

    Secret Squirrel (249c90)

  57. I do have an off-topic question: Why is every member of the Supreme Court either a Harvard or Yale graduate?

    I’m not questioning the reputations of the institutions, but there are a whole lot of good lawyers in the nation and a whole lot of them didn’t graduate from those two fine institutions.

    Since there are plenty of lawyers who read this blog, what’s your take?

    Ag80 (f67beb)

  58. Secret Squirrel: of course he Supreme Court does not rule on levels of scrutiny under state constitutions.

    That said, it’s unclear what level of scrutiny is used for sexual orientation under the federal constitution. Romer and Lawrence both claimed to be using rational basis review but were both clearly lying.

    Note, also, that sexual orientation discrimination and gender discrimination are two different things which could potentially have two different levels of scrutiny.

    aphrael (73ebe9)

  59. Ag80,

    I think it’s mostly elitism because many believe Ivy League law schools, especially Harvard and Yale, attract and produce the most intelligent people. While it’s true elite law school admissions are competitive and that their admissions criteria (including significant LSATs, GPAs, and extracurricular activities) are indicators of achievement, they may not be the best indicators of intelligence and ability years down the road.

    I also think it’s related to society’s movement toward specialization, especially in the professions. There was a time when doctors were doctors and lawyers were lawyers. Now we specialize and, for lawyers, attending an elite law school is the way to prepare for elite legal positions like the Supreme Court.

    To a lesser degree, believing in the importance of elite institutions validates their decision to spend so much money sending their kids to Ivy League colleges and graduate schools. Once you’ve worked so hard and so long to get your kid accepted at an elite institution and you’ve spent a fortune keeping them there, how can you decide it wasn’t worth it?

    DRJ (d43dcd)

  60. Steve

    her f— up in citizens united is exactly why i am glad she is the pick. she will harm whatever side she is on.

    A.W. (f97997)

  61. Ag80: “Why is every member of the Supreme Court either a Harvard or Yale graduate?”

    It’s an artifact of recent trends toward “meritocracy” and “credentialism”. No Ivy League law grad was named to the Court till 1888, and only four more before 1923. Then 8 of the next 9 were Ivy League. From 1940 to 1981, 8 of 23 were; the last 9 all were.

    But note that the present crop of 8 Ivy Leaguers includes a black, a hispanic, two Jews, two women, two Italian-Americans, and six Catholics.

    Rich Rostrom (7a3582)

  62. Note, also, that sexual orientation discrimination and gender discrimination are two different things which could potentially have two different levels of scrutiny.

    The problem is that there is absolutely no indication that under the original public understanding of the 14th Amendment’s equal protection clause that sexual orientation would trigger a higher level of scrutiny than gender.

    In fact, sexual orientation should not be a “class” under the 14th Amendment. Remember that the Loving decision did not cite any concept of racial orientation.

    Secret Squirrel (249c90)

  63. Wasn’t one of the reasons we fought the Civil War to stop gay Southerners from forcing themselves on their male slaves?

    nk (db4a41)

  64. And don’t tell me Simon Legree’s “whip” was not allegorical.

    nk (db4a41)

  65. Well, there must be the voice of the “kinky skin-head” lobby?

    AD - RtR/OS! (09aa03)

  66. The precedent seems to be stacked one way.

    That was a great post, SS. I knew about Baker, the other cases you cited were very revealing.

    In fact, sexual orientation should not be a “class” under the 14th Amendment. Remember that the Loving decision did not cite any concept of racial orientation.

    How would the concept of sexual orientation be different from racial orientation?

    To a lesser degree, believing in the importance of elite institutions validates their decision to spend so much money sending their kids to Ivy League colleges and graduate schools. Once you’ve worked so hard and so long to get your kid accepted at an elite institution and you’ve spent a fortune keeping them there, how can you decide it wasn’t worth it?

    Elite institutions have high standards for entry and a demanding curriculum.

    Would they stay elite if they dumbed down their standards or curriculum?

    Romer and Lawrence both claimed to be using rational basis review but were both clearly lying.

    How were they lying?

    Michael Ejercito (249c90)

  67. How will she answer this question?
    “Do you believe that there is a federal constitutional right for a woman to abort her unborn child?”

    Will she honestly answer, “There is no federal constitutional right to abort a human being”?

    Of course not. She will recite chapter & verse from the Roe v. Wade decision about how the 14th Amendment, A) defines that only those persons that have been born are citizens, and therefore receive equal protection under the law; and, B) also protects a woman’s ‘right to privacy’, based on the clause “nor shall any State deprive any person of life, liberty, or property, without due process of law”.

    I’ve always wondered how the ‘right to privacy’ is defined in this instance. Is it the self-centered “the pregnant woman has the right to have a life“? or, is it that “liberty” must include the freedom to kill the thing inside you that isn’t protected by the same Amendment? or, since it is not a citizen, is it simply categorized as “property” to be used and disposed of at the will & whim of its ‘owner’?

    And don’t be surprised when she brushes away any suggestion that what the 14th Amendment really says — “nor deny to any person within its jurisdiction the equal protection of the laws” — actually DOES protect the unborn! It specifically says “person”; it does not say “citizen”. The language of the COTUS is very deliberate. Talk about intentionalism vs. the plain language of what’s in the law! The unborn are defined as non-citizens, NOT as non-persons.

    Icy Texan (5dc8a2)

  68. AD – RtR/OS! #65 – I’ve heard of having a head of kinky hair, but, rather than a head of kinky skin, should it not be more honestly phrased as a head of wrinkled skin ?

    (innocent smile)

    Or, as the old folk-saying has it “Some well-placed botox can smooth out the kinks !” …

    Alasdair (302007)

  69. Hmmmm – on a different philosophical topic, does one count as having been “natural born” if one was “untimely ripped” ? (As in delivered by C-section rather than born ?)

    Alasdair (302007)

  70. Comment by Alasdair — 5/11/2010 @ 2:30 pm

    Well, I’ve had some kinks smoothed out before, but we never used Botox. (Heh!)

    AD - RtR/OS! (09aa03)

  71. And don’t be surprised when she brushes away any suggestion that what the 14th Amendment really says — “nor deny to any person within its jurisdiction the equal protection of the laws” — actually DOES protect the unborn! It specifically says “person”; it does not say “citizen”. The language of the COTUS is very deliberate. Talk about intentionalism vs. the plain language of what’s in the law! The unborn are defined as non-citizens, NOT as non-persons.

    The 14th Amendment restrains state action, not private action. (Civil Rights Cases, 1883)

    Thus, it does not prevent private citizens from having abortions.

    Michael Ejercito (249c90)

  72. “The 14th Amendment restrains state action, not private action.”
    — That’s right, Michael Ejercito; and what I am saying is that the clause at the end of Section 1, “nor deny to any person within its jurisdiction the equal protection of the laws,” obligates — because it specifically uses the term “person”, and not “citizen” (the unborn being persons, but not citizens) — a state to extend the protection of its murder & manslaughter statutes to the unborn. If the writers of the 14th had intended to write “citizen” instead of “person” they would have done so, but they didn’t. This, of course, eliminates any question of whether or not it is acceptable to shoot an illegal (non-citizen) for reasons other than self-defense. You cannot, because of equal protection.

    It can reasonably be concluded (regardless of the intent of the lawmakers!) that the first clause in Section 1 — “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside” — excludes the unborn from the second clause: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”. By default the unborn are subject to having privileges or immunities abridged by law. But where does this say that the privilege to breathe, and the immunity from being yanked out of the uterus with a pair of pliers is suspended?
    Answer: It doesn’t, because of the following:

    Then there’s that pesky third clause — the one that the majority justices in Roe v. Wade cited in asserting a woman’s ‘right to privacy': “nor shall any State deprive any person of life, liberty, or property, without due process of law”. How they determined that the right to privacy included the right of a pregnant woman to terminate the life of the person within her is, to say the least, fuzzy. It does say ANY PERSON. I’m afraid that for most reasonable people a baby’s life wins out over a woman’s “liberty”. Liberty is never unrestricted within a society governed by rule of law. Most state laws are pretty clear: You cannot take the life of another person unless that person’s deliberate & malicious are threatening your life.

    Your argument concludes: “Thus, it does not prevent private citizens from having abortions”. Well, beyond the basic simple fact that I NEVER ASSERTED THAT THE COTUS ITSELF OUTLAWS ABORTION, i will simply return to my core argument: Equal protection applies to the unborn; because they ARE persons, and nothing in the COTUS says that they are not.

    Icy Texan (7b13af)

  73. This, of course, eliminates any question of whether or not it is acceptable to shoot an illegal (non-citizen) for reasons other than self-defense. You cannot, because of equal protection.

    No, because of statutes on homicide.

    Secret Squirrel (249c90)


Powered by WordPress.

Page loaded in: 1.6824 secs.