Everyday Scientist (NotScience)

Thoughts on Kagan

Here are my opinions on Kagan’s nomination to the Supreme Court. Not good. She will swing the court further to the right on a number of important issues.

First, she appears conservative on church-state separation. I was hoping that her being Jewish would make her more sensitive to this subject, but no such luck. As Solicitor General, Kagan argued to keep the big white memorial cross that was erected on government land in the Mojave desert. She won. The decision was a 5-4 split with the “liberal” bloc dissenting. With Kagan instead of Stevens, it would have been 6-3. Sux.

For background on that case, the government put up this big white cross in the desert as a memorial for war veterans. The government rejected putting up memorials that were symbols used in other religions. Then when people sued, the government thought it could wiggle out of the issue by giving the land to a private organization. (Mind you the government kept a right of reversion in the estate.) The Constitution says government can’t establish religion, which means no favoring or endorsing one religion over the other. The conservative majority said it’s peachy for government to acknowledge religion in society and that the lower court should have a sporting chance to find that the government “cured” any potential establishment of religion when it handed over the property to the private organization. They completely ignored the facts that a) the cross is clearly a specific religious symbol, b) other (non-Christian) religious symbols were rejected, and c) by giving the land over in order to keep that cross aloft, the government was clearly favoring endorsement of a particular religion. It wasn’t curing the establishment. It was ensuring the establishment. The minority astutely pointed out as much. So we can probably expect more idiocy in this area if Kagan joins the Court.

Second, Kagan appears conservative on expansive Executive Powers. So far the liberal bloc have invalidated the prior administration’s efforts to a) exempt from judicial review those ‘enemy combatants’ held abroad, b) create a corrupt military commission for foreigners charged with war crimes, and c) relax protocols on interrogating suspected terrorists.

Kennedy was the swing vote. Now it seems, Kagan would be – but in the wrong direction. Obama retained Bush’s sweeping ‘state secrets’ doctrine, and Kagan was all over that. But more troublesome is that Kagan appears to support a) indefinite detentions of suspected terrorists and b) expanding ‘terrorism law’ where criminal law rightly belongs. All very conservative.

Third, she appears down on gay rights. Well, to be fair she has been outspoken against ‘don’t ask, don’t tell,’ but I don’t think that was so much pro gay rights as it was pro people serving in the military. Even so, I’m skeptical that that issue will ever get to the Supreme Court. It’s largely a matter for the Executive Branch. Aside from that issue, it doesn’t look good. Kagan flat-out opposes marriage equality, stating unequivocally that the Constitution does not entail a right for same-sex couples to marry. She didn’t even hedge when asked. She could have said the issue is undecided and that it would be inappropriate to offer opinions on the topic. She could have said that, as Solicitor General, she would be bound to follow Obama’s position on the topic, which is to be meekly tolerant of civil unions but to oppose gay marriage. Nope, she did nothing of the sort. Sad. The Court is going to face all sorts of gay right issues in the coming years: gay marriage, same-sex couple’s adoptions, green cards, inheritance rights, healthcare and financial proxies, and more. Not good.

Fourth, I think it’s safe to say she is meekly pro choice. She refers to the body of law protecting a woman’s right to choose as “settled law” and marginally supported the standard that a government cannot create “undue burden” obstructing that choice. I say “marginally” because she seemed fine with protecting the nonsensical anti “partial birth” abortion act. A bunch of other reproductive rights issues are sure to head to the courts: parental notification, waiting periods for minors, interstate abortion availability, government mandated cost-prohibitive procedure prior to abortion. If she’s cool with the “partial birth” abortion nonsense, I won’t be surprised when she rolls over for the rest.

So there you go. She’ll likely be confirmed. And for the worse, I say, though I suppose we could do worse. Sigh. It’d be nice if Obama would be a goddam Democrat for a change.