Thursday, May 20, 2010

Conservatives and the Kagan nomination

Ome of our favorite people on Constitutional interpretation, natural law and the Supreme Court is Robert George of Princeton. Here's his take on how conservatives should deal with the Elena Kagan nomination.

How should conservatives react to President Obama's nomination of Elena Kagan?

First, let me say how conservatives should not react. They should not claim that Kagan is the Democrats Harriet Miers. She is not. I myself opposed the President Bush's nomination of Miers, as did most conservatives, on the ground that her record, though perfectly respectable, was not distinguished. Kagan's record, by contrast, is distinguished. If she were a committed constitutionalist, as conservatives understand that idea, we would, rightly, be celebrating the nomination of a person of her ability and distinction.
Furthermore, conservatives should not speculate or entertain speculation regarding Kagan's romantic interests, feelings, or "sexual orientation." Some of this has gone on in the media (and not just among conservatives), and it is despicable. (Indeed, I find it so loathesome that I am reluctant to bring the subject up, even for the purpose of condemning it.) Kagan has done nothing to bring her personal life or private feelings into public view and no one can point to anything in her record as a professor, dean, or White House official that raises questions to which facts about her romantic interests or inward feelings are relevant. It is true that Kagan fiercely opposed the Solomon Amendment and argued that it is unconstitutional (an argument that not even John Paul Stevens or Ruth Ginsburg was willing to swallow); but her position was scarcely idiosyncratic among liberals and there is no reason to suppose that it was the product of personal interests or bias.

It's all at Mirror of Justice. The blog is for Catholics who are trying to think as Catholics about the law. There is also response to George in later posts there.


  1. I respectfully disagree that Conservatives should not in the least be concerned with Kagan's sexual orientation. IF supreme court justices were merely interpreters of the law that sought to be impartial and illuminating of the laws intentions then that might be possible. Tragically Roe vs. Wade and many other decisions have shown this to not be the case and rather that the Supreme Court justices merely apply their ideas of the interpretation of the law in many cases and there is a precedent across the country for this in particular being applied to homosexual marriage cases.

    Most of us believe that gay marriage will eventually reach the supreme court and at that time it will be of the most vital importance a justices stance not only on gay marriage, but the characteristics of homosexuals in general. It might be nice to pretend this has no bearing, but if I were in favor of homosexual marriage I know my odds of success are significantly improved having a homosexual judge. Why would pro-marriage not believe our odds are worse if the judge is a homosexual? I think this is a case of being a little too intelligent and involved for your one's own good and trust the legal system a little too much.

  2. USCCB supports illicit group that supports abortion and Kagan

  3. The rest of this article states that we should challenge that IF statement (justices decide purely based on what's in the law not personal interpretation) that was made and I agree with the author in that regard. We can render the second half of my statement moot if we make the fight about judicial interpretation rather than sexual orientation. Kudos to the author.