The second matter is marriage. Kagan is on record as saying that traditional marriage laws lack a “rational basis.” This is tantamount to saying that she would read the Fourteenth Amendment to mandate same-sex marriage across the land. If Kagan is permitted to act on these views, she would participate in a social revolution as momentous as that delivered in Roe. This one, too, would alienate most Americans from the Supreme Court, even from the Constitution itself. It would be another institutional disaster piled on top of a grave injury to the common good.
On matters such as equal protection of everyone against lethal violence and the protection of marriage, the relevant criterion for a prospective Supreme Court justice is getting it right. Where mistakes have ruinous consequences, being in the alleged “mainstream” is not good enough.
– Gerard V. Bradley is professor of law at the University of Notre Dame, and a former president of the Fellowship of Catholic Scholars.
JAMES R. COPLAND What do conservatives mean when they speak of “judicial activism”? (Hint: It doesn’t mean overturning clearly wrong legal precedents, nor does it mean overturning laws enacted by Congress that contradict the clear text of the Constitution.)
Was the president right to accuse this Supreme Court of giving undue political influence to corporate special interests? (Hint: Not unless you believe there’s a principled reason to give General Electric and Disney the unlimited right to make their opinions heard but not the NRA or NAACP.)
Should judges follow the president’s advice to give special consideration to disadvantaged parties in legal disputes? (Hint: If they do, it’s far from clear that the truly disadvantaged in society won’t be worse off in the aggregate.)
We should focus on these and similar questions as the Senate considers the nomination of Elena Kagan, who — as I expected — was tapped by President Obama to replace John Paul Stevens on the Supreme Court. Notwithstanding her lack of judicial and litigation experience (Kagan almost certainly doesn’t meet what she herself described as the “threshold requirements” of the job), I wouldn’t expect her to follow her own advice and engage with Senators “inmeaningful discussion of legal issues.” What we will see is hemming and hawing — and, absent a heretofore unknown revelation, a confirmation. But that doesn’t mean we can’t take advantage of the public’s attention and help to clarify some very important issues.
– James R. Copland is the director of the Center for Legal Policy at the Manhattan Institute.
MATTHEW J. FRANCK Elena Kagan will certainly be confirmed to the Supreme Court this summer. She is not an outstanding nominee, judged by the scanty record of her legal thinking. But she is a “safe” one — clerkship with Thurgood Marshall, professor at Chicago, dean at Harvard, confirmed last year as solicitor general — and the lack of much of a paper trail on her jurisprudential views will do her more good than harm in the confirmation hearings.
The Republicans will not block Kagan with a filibuster, though they might delay things a bit if the Democrats put on an unseemly rush. And the GOP should not attempt to prevent a floor vote on Kagan unless something comes to light that makes her manifestly unfit for judicial service.