Monday, May 10, 2010

SCOTUS Thoughts

So, today President Obama made official what anyone with a web browser has known since last week: that Elena Kagan will be his nominee to replace John Paul Stevens on the Supreme Court. The narrative has already been pre-written--Kagan is the "safe" pick, and will be easily confirmed, mainly because she got 60+ votes for confirmation as Solicitor General, and because she has gotten some flak from the extreme left for not being a full-blown pinko, as they would have liked. The only small bit of controversy came when someone wrote a week ago that she would be the first openly-gay justice (which was meant to be a compliment), only to be immediately smacked down.

The media double standard never ceases to amaze me. Had George W. Bush nominated a long-time crony with no judicial experience, he would have been crucified. (Wait--he DID. And his nominee, Harriet Meiers, was eviscerated as much from the right as the left. No chance of that this time!) Still, Kagan is a smart pick. Her negligible paper trail (a couple of academic papers, and a few book reviews) will be very hard to use against her, and there is no chance that her lack of scholarship will lead to her "growing" more conservative in office in the same way that previous "stealth" candidates have grown more liberal.

I think some folks are breathlessly hoping that social conservatives like me will get all frothy over her lesbianism. Whether she is formally "out" or barely-closeted, everybody in DC knows she's gay. If you're over the age of about 20, you probably know folks like this. You know, they know you know, but it's just not a topic of conversation. For my money, that's a whole lot better than the people who can't go five minutes without dwelling on it. Once upon a time, the argument was that closeted homosexuals presented a blackmail risk. But now, the phrase of the day is "NTTAWWT." You can't blackmail someone in a culture without shame.

It is true that Kagan's sexuality could impact her jurisprudence on the issue of "gay marriage." Indeed, her only confirmation hurdle will be rooted in her joining a challenge of the Solomon Amendment (which barred colleges which will not allow US military recruiters from receiving federal funds), based primarily on her opposition to the "Don't Ask, Don't Tell" rule. (Just as a footnote: the Supreme Court struck down that case 8-0; even the most liberal judges found it frivolous.) But even that doesn't bother me. Let's face it--ever since election day 2008, every SCOTUS nominee for the next 4 years was 100% guaranteed to be pro-abortion, pro-gay-marriage, and in all respects the polar opposite of a Constitutional originalist. Elections have consequences. For conservatives, all we can do is hope that Antonin Scalia eats his Wheaties.

The only "good news" in this scenario, from my point of view, is that Kagan will replace John Paul Stevens. She could be a barefoot hippie in a Che Guevera shirt and still not be any more of a left-wing judge than him. Yes, we're trading a 90-year-old liberal judge for a 50-year-old liberal judge. But at the end of the day, the balance of the court remains the same (which is to say, you work your way through the entire federal court system just to hope you catch Anthony Kennedy on one of his better days).

So, sorry to disappoint if you expected me to get upset. Cronyism? Yeah. Lightweight? Yep. Cynical pandering to left-wing "diversity" group? Check. Antagonistic to my world-view? Uh-huh. But also exactly what I expected. To reference a couple of posts ago--when you expect Big Lots quality, it's hard to be disappointed.

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