The Kagan Question (is she or isn't she?)

The President has nominated a new Supreme Court Justice. This summer, I am sure this town will be full of activists on both sides. In religious circles, questions abound about about two areas on which she will spend the least amount of time: abortion and gay marriage. Ms. Kagan's nomination is complicated by the fact that she recommended to President Clinton that he sign the Partial Birth Abortion Bill (which Bush signed and the Court upheld) and by suspicions that she may be a lesbian due to her marital status. Indeed, my better read competitor, America Magazine, contains a story today in its online issue, which you can read at http://www.americamagazine.org/blog/entry.cfm?blog_id=2&entry_id=2901. I also received an email today from one of Liberty U.'s lawyers, Matt Barber, but I won't discuss it since it was, frankly, reasoned badly (as one would expect from Barber).

As I wrote on the comment page, elections matter. Indeed, if the GOP would stop demagoging abortion for their electoral agenda and really address how to get beyond Roe in reducing abortion (by using Congressional action instead of attempting to overturn most equal protection doctrine by overturning Roe), they might have gotten more Catholic votesin the last election and be nominating someone else - although considering who they put on the ticket (an abortion demagogue who was not even familiar with the arguments on her own side) - that was unlikely to happen anyway. In other words, in a world of sane anti-abortion policy, Sarah Palin would not be where she was (or is).I don't expect abortion to come up again judicially for the foreseeable future - accept around the edges. Indeed, partial birth is already decided, although Congress could change the law and there would be no court case for Kagan to hear, since the law was upheld because of Congressional power.

There are seven votes against overturning Roe - three of whom no counting Stevens - who were GOP appointees. When O'Connor retired, she was replaced origionally with Roberts - which replaced a pro-Roe centrists with one of the same. Roberts than replaced Rehnquist, which was an anti-Roe loss, since the former CJ voted with Scalia and Thomas. Souter was replaced by Sotomayor - a moderate for a moderate and now Stevens is being replaced by Kagan. This is a loss for the pro-choice side, since Stevens was in that camp while Kagan, who told Clinton to sign the Partial Birth Abortion Act, is probably moderate on the issue. We are left with two pro-choicers (Breyer and Ginsburg), two pro-lifers (Thomas and Scalia) and five in the middle (Roberts, Alito, Kennedy, Sotomayor and Kagan). Maybe I am wrong on elections mattering. They do matter on who gets to chose - however the choser appears not to be the most pro-abortion President in history.I do expect economic issues to come up more. I hope that Kagan votes like a liberal - although given her mainstream career path, it is a hope, not an expectation.

Her sexuality matters not, although even if she were a lesbian, I would hope she sides with Kennedy on the issue of gay marriage - against a body of state passed constitutional amendments which are motivated by malice towards a minority group and which, therefore, cannot be constitutional. It would be no more inappropriate to put Kagan on to agree with such basic justice as it was to put a prior Solictor General on the Court (Marshall) in order to vote correctly on civil rights matters. Even if the left puts up a hue and cry about her moderation on abortion, I doubt Obama will dump his long time friend (unlike Bush, who dumped Meyers and did not even come close to appointing Gonzales). Unless there is a total GOP fillibuster against her (and I doubt Bennett would follow it), she is in.