Le·gal In·sur·rec·tion

William Jacobson of Legal Insurrection seems to agree that while sexual orientation may not be a big deal, previous support of gay marriage is a red flag.

Elena Kagan has stated that she does not see a constitutional right to marriage, which greatly increases her chances of confirmation, but she is not without controversy on the broader issue of gay rights. While Dean of Harvard Law School, Kagan was at the center of controversy over the military’s “don’t ask, don’t tell” policy. Kagan, along with numerous other law school deans, sought to ban military recruiters from campus based on the schools’ anti-discrimination policies. Congress passed the so-called Solomon Amendment which denied federal funds to universities which did not allow military recruiting. The issue went all the way to the Supreme Court which unanimously (8-0, Justice Alito did not participate) upheld the Solomon Amendment rejected Kagan’s legal theory that the anti-discrimination policy was being applied neutrally to all potential employers and therefore did not violate the law. (The Justice Department’s recent decision not to challenge the constitutionality of the “don’t ask, don’t tell” policy, and the political hesitation to take on the issue, signals that the administration is not looking for a fight on this issue.) Nonetheless, Kagan’s stated position on gay marriage makes her more likely to be confirmed if nominated.

Other nominees certainly will be the subject of scrutiny on these issues. Some will have been on record, while others may seek refuge behind the refusal to answer questions which may come before the court. Any nominee who has come out for gay marriage constitutional rights in the past, or dares to say so during the confirmation process, likely is not confirmable.

“Interesting thought that,” responds Gay Patriot. “Not sure I agree with him there, may need to think about it for a while, but do agree with him when he writes, ‘There is no indication that Obama wants a fight over gay marriage, or wants his first Supreme Court nomination to turn on that issue. But he may not be able to avoid the issue, as much as he may like to do so.’ I’ll go one step further; I’m willing to bet that the President doesn’t want a fight over the issue, rather the Judiciary Committee avoid the issue altogether in the confirmation hearings.”

I am no longer seething. Now if only I could get Alan Colmes to quote me nicely.

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