As Solicitor General, Elena Kagan appears to have indulged her strong ideological bias on gay rights by undermining federal laws that she was dutybound to defend: the Don’t Ask, Don’t Tell law and the Defense of Marriage Act. Her actions provide ample cause for concern that she would indulge her ideological biases as a justice and, in particular, that she would vote to invent a constitutional right to same-sex marriage.
Let’s start with Don’t Ask, Don’t Tell. As I spelled out in detail last year, Kagan declined to seek immediate Supreme Court review of a rogue Ninth Circuit ruling that applied a higher level of scrutiny to Don’t Ask, Don’t Tell than Kagan herself had acknowledged was required under prevailing case law. In July 2008, the Solicitor General’s office in the Bush Administration, in filing a petition for rehearing en banc, argued that the Ninth Circuit panel decision “creates an inter-circuit split, … a conflict with Supreme Court precedent, and an unworkable rule that cannot be implemented without disrupting the military.” That brief clearly signaled that the obvious next step would be to seek Supreme Court review.
Instead, hiding behind a grossly exaggerated statement of the Supreme Court’s preference for review of final (rather than interlocutory) decisions, SG Kagan chose not to seek Supreme Court review. But the Court’s policy disfavoring interlocutory review would have little or no weight where, as in this case, (1) the court of appeals had ruled on a pure question of law (not a mixed question of law and fact that might benefit from further factual development); and (2) that ruling subjected a litigant—especially the military during a time of war—to litigation burdens that would be eliminated by a reversal. Even worse, requiring the military to undergo burdensome litigation in the district court under the Ninth Circuit’s amorphous standard meant that, in the event of a victory by the military, the government wouldn’t be able to challenge that standard in that case. The continuing existence of the Ninth Circuit’s ruling also invited additional burdensome lawsuits by other plaintiffs before various judges, the predictable end result of which is chaos and confusion.
At her hearing (Sessions Round 2), Kagan offered this defense of her failure to seek immediate Supreme Court review:
The question we had to decide was whether to challenge that Ninth Circuit decision at an early stage or at a late stage of the case.… [W]e thought that it was — it would be better to go to the Supreme Court with a fuller record, and with a fuller record about the particular party involved, maybe more importantly, with a record that would show exactly what the Ninth Circuit was demanding that the government do. Because what the Ninth Circuit was demanding that the government do was, in the government’s view and particularly in DoD’s view, a kind of strange thing where the government would have to show, in each particular case, that a particular separation caused the military harm rather than to view it in general across the statute. One reason we thought that the remand would actually strengthen the case in the Supreme Court was because the remand would enable us to show what this inquiry would look like, what the Ninth Circuit’s — the inquiry that the Ninth Circuit demanded would look like, and to suggest to the Supreme Court, using the best evidence there was, how it was that this inquiry really would disrupt military operations.
Kagan’s defense of her decision is utterly unconvincing. First, she leaves the false impression that the government had to decide to seek review either then or later. The fact of the matter is that it could have taken two bites at the apple. In the unlikely event that its interlocutory petition wasn’t granted, it would still have had its full right to seek review of an adverse final judgment. Second, the Ninth Circuit ruling was clearly contrary to prevailing Supreme Court case law, as Kagan herself described that case law at her SG confirmation hearing. There was no need for a “fuller record” to establish that. And it would have been an easy matter to explain to the Court the “strange thing” that the Ninth Circuit was requiring.
What did not seeking immediate review really achieve? It enabled those in the Obama Administration, like Kagan, who opposed Don’t Ask, Don’t Tell to buy time as they worked to reverse it. And it enabled Kagan to duck taking a public position on a hot-button issue that might have complicated her prospects for a Supreme Court nomination.